Introduction to Greek Law 9789041155436, 9789601518374, 9789041125408

Table of contents :
Cover
Half Title Page
Editorial Page
Title Page
Copyright Page
Prefaces
Abbreviations
Table of Contents
Chapter 1 Historical Development
I. Introduction
II. Ancient Greek Law
A. Early Law
B. The Era of the Lawgivers
C. Classical Law
III. Hellenistic, Byzantine, and Post-Byzantine Law
A. Hellenistic Law
B. Byzantine Law
C. Post-Byzantine Law
IV. Modern Greek Law
A. Constitutional History
B. Codification of Civil Law
Bibliography
A. On Ancient Greek Law
B. On Hellenistic, Roman, Byzantine and Post-Byzantine Law
C. On the History of the Law of the Modern Greek State
Chapter 2 Sources and Materials
I. Legislation
II. Custom
III. Judicial Decisions
IV. Works of Legal Scholars
V. Materials
Basic Bibliography
A. In Greek
B. In Other Languages
Chapter 3 Constitutional and Administrative Law
I. The Constitution
A. The New Constitution
B. Amendments
C. Emergency Law
D. Constitution and International Law
E. Constitution and the European Union – The Accession of Greece and Its Participation in European Integration
II. Structure and Distribution of State Powers
A. System of Government
B. Distribution of State Power
1. Separation of Powers – Links Between the Legislative and Executive Branches
2. Shift of the Political Power Center under the 1975 Constitution – The 1986 and 2001 Amendments
3. Legislation
4. Finance
5. Executive
6. Judiciary
C. State and Church
III. The Main Organs of State
A. Parliament
1. Composition and Election
2. Political Parties
3. Legal Status of Members of Parliament
4. Legislation and Parliamentary Control
5. Dissolution of Parliament
B. The President of the Republic
C. The Government
1. Constitutional States
2. Composition
3. Cabinet Committees
IV. Administration
A. Central Government
1. Ministers – Ministries
2. Regional Authorities – Decentralization(αποκέντρωση, apokentrosi)
3. Independent and Regulatory Authorities
B. LOCAL GOVERNMENT (τοπική αυτοδιοίκηση, topikiautodioikisi)
1. Decentralization on Two Levels – Local Government Corporations – Towns and Villages
2. Local and Central Government Matters
3. Organization
4. Finance
5. State Supervision
C. Specialized Self-government
1. Legal Persons of Public Law (νομικά πρόσωπα δημοσίου δικαίου, nomika prosopa dimosiou dikaiou)
2. Public Corporations (δημόσιες επιχειρήσεις, dimosies epicheirisseis)
D. General Principles of Administrative Action
1. Legality of Public Administration
2. Discretionary Power
3. Administrative Acts
4. Reasons for Decisions and Right to Hearing
5. Void and Voidable Administrative Acts
6. Revocability of Administrative Acts
7. Administrative or Public Contracts
8. State Liability
9. Expropriation
V. Control of Public Administration and Judicial Review
A. Administrative Self-control
1. Hierarchical Control
2. Control by Independent Agencies
3. Formal Petitions
4. Administrative Supervision
5. Financial Control
6. Control by the Citizen’s Advocate (Ombudsman)
B. Parliamentary Control
C. Judicial Control
1. Administrative Courts – Judicial Review as a General Rule
2. Remedies before the Council of State – The Application for Annulment
VI. Human Rights
A. Protection of Human Rights
1. Constitutional Protection
2. Protection by the European Convention of Human Rights and Fundamental Freedoms, and Other International Conventions
B. Main Problems Relating to the Protection of Human Rights in the Constitution
1. From an Individualistic to a Humanistic Orientation
2. Conflict and Synthesis: Private Ownership and Private Economic Activity
3. Summary
C. Judicial Protection
Bibliography
A. Books
B. Articles and Other Publications
C. Textbooks of Constitutional Law, Administrative Law and Administrative Courts Procedure in Greek Published Since 2000
Chapter 4 Application of Community Law in Greece
I. Introduction
II. Introduction of Community Law into the Greek Legal Order: Recognition of Its Particular Status
A. Supremacy of Community Law
1. Constitutional Foundations of Community Law Supremacy
2. A Relative Supremacy of Community Law over the Constitution?
B. Direct Effect and Applicability: The Removal of Internal Barriers to the Effective Insertion of Community Law in the Greek Legal Order
1. Direct Effect of Primary Community Law
2. Direct Applicability of Regulations
3. Direct Effect of Directives
(a) Specific Character of Directives
(b) Reception of ECJ Decisions by Greek Courts
4. Law 1338/1983 Providing the Incorporation of Secondary Community Law in the Greek Legal Order
III. Judicial Application of Community Law in Greece: The Guarantee of Community Law Effectiveness
A. Cooperation between Greek Judges and the ECJ
1. Preliminary Reference of Article 234 EC Treaty: The Basis of Cooperation
2. The ECJ and Greek Courts: Conflict or Cooperation?
B. Greek Cases: Extensive Compliance with the ECJ
Bibliographical References
A. Books and Studies
1. In Greek
2. In Languages Other than Greek
B. Articles and Other Contributions
1. In Greek
2. In Languages Other than Greek
Chapter 5 The General Principles of Civil Law
I. Introduction: Scope and Function of Book I of the Civil Code
II. NATURAL PERSONS (φυσικά πρόσωπα, fysika prosopa)
A. PERSONALITY OR JURIDICAL CAPACITY (προσωπικότητα,prosopikotita; ικανότητα δικαίου, ikanotita dikaiou)
B. Commencement and Termination of Personality
C. ABSENTIA (αφάνεια, afaneia)
D. Domicile
E. Protection of Personality
III. LEGAL OR JURIDICAL PERSONS (νομικά πρόσωπα,nomika prosopa)
A. Categories of Legal Persons
B. Some General Principles of the Law of Legal Persons
1. Formal Requirements
2. Personality
3. Seat (έδρα, edra)
4. Liability for Juridical Acts
5. Non-contractual and Delictual Liability
IV. RIGHTS (δικαιώματα, dikaiomata)
A. Meaning
B. ABUSE OF RIGHT (κατάχρηση δικαιώματος,katachrisi dikaiomatos)
C. ‘DEACTIVATION’ OF RIGHT (αποδυνάμωση, apodynamosi)
D. SELF-HELP, SELF-DEFENSE, EMERGENCY (αυτοδικία,autodikia; άμυνα, amyna; κατάσταση ανάγκης, katastasianangis)
V. JURIDICAL ACTS (δικαιοπραξίες,dikaiopraxies)
A. Definition
B. CAPACITY (ικανότητα, ikanotita)
C. Vices of Consent
D. Form
E. FORMATION OF CONTRACTS (σύναψη συμβάσεων, synapsi symvaseon)
F. Consideration and Cause
G. Content of Juridical Acts
H. NULLITIES (ακυρότητες, akyrotites)
I. Interpretation
VI. Terms and Conditions
VII. Representation and Procuration
A. Introduction
B. Express, Implied, and Apparent Authority
C. Undisclosed and Partially Disclosed Agency
VIII. Prescription and Peremption
A. Clarification of Terms
1. Prescription
2. Acquisitive Prescription and Prescription by Non-use
3. Peremption
B. General Principles of Prescription
1. Commencement and Accrual
2. Suspension
3. Interruption
4. Extension, Reduction, Renunciation
5. Accrual
Bibliography
Chapter 6 Law of Obligations
I. General Principles
A. Sources of Obligation
B. Obligation to Perform in General
1. Performance in Good Faith
2. Rules Relating to Particular Kinds of Performance
(a) Things Described by Class
(b) Promises in Money
(c) Interest
(d) Reparations
(e) Obligation to Render Account/Obligation to Provide Inventory
(f) Alternative Obligations
3. Part-performance
4. Performance by Third Parties
5. Place for Performance
6. Time for Performance
7. Responsibility for One’s Own Conduct
8. Responsibility for Employees
C. Contractual Obligations
D. Two-sided Contracts
E. Non-performance of Obligations
1. Claim to Performance in Kind
2. Impossibility
3. Delay
4. Other Cases of Breach of Contract
5. Default of the Creditor
F. Contractual Rescission
G. Earnest and Penalty Clause
1. Earnest
2. Penalty Clause
H. Contract for the Benefit of Third Parties Contract Burdening Third Parties
I. EXTINCTION OF OBLIGATIONS (απόσβεση ενοχών, aposvesi enochon)
1. Fulfillment
2. Deposit
3. Novation
4. Set-off
5. Merger
6. Release
J. Assignment of Claims
K. Assumption of Debt
L. Joint and Several Obligations and Claims
II. Specific Contracts
A. Donation
B. Sale and Exchange
C. Lease
D. Usufructuary Lease
E. Contract for Services
F. Contract for Work
G. Brokerage Contract
H. Reward
I. Mandate
J. Civil Company
1. The Civil Company Defined
2. Agreement and Legal Personality
3. Internal Operation: Rights and Obligations of the Partners
(a) Contribution
(b) Standard of Care
(c) Administration
(d) Administration by Delegated Power
(e) Right to Check and Control
(f) External Functioning and Representation
(g) Joint Ownership
(h) Partner Substitution
(i) Sharing of Profits and Losses
4. Dissolution
5. Winding-up and Liquidation
6. The Question of Bankruptcy
K. Community
L. Loan
M. Contract of Deposit
N. LIABILITY OF INNKEEPERS (ευθύνη ξενοδόχων, euthyni xenodochon)
O. Life Annuity
P. Gaming and Betting
Q. GUARANTY
R. COMPROMISE
S. Abstract Promise or Acknowledgment of Debt
1. Concept and Validity
2. Effect on the Burden of Proof
3. Formal Requirements
T. Order to Pay or Deliver
U. BEARER BONDS
V. Production of Things and Documents
III. Unjust Enrichment
A. Scope of Application
B. Defenses
C. Directness of Transfer
D. EXTENT OF LIABILITY IN RESTITUTION
IV. Unlawful Acts (Torts, Delicts)
A. The Area of Tort Law
B. The Elements of Tort Liability
C. Defamatory Rumors
D. Unlawfulness
E. Culpability
F. Strict Liability
G. Joint Tortfeasors
H. Personal Injury and Death
I. Consequences of Tort Liability: Remedies
V. Fraudulent Conveyances
A. Conditions
B. Parties to the Action
C. Effects
Bibliography
A. Books and Commentaries (in Greek)
B. Articles in Law Reviews and Monographs (in languages other than Greek)
C. Other
Chapter 7 Property
I. Introduction
II. Things
A. OBJECT AND THING (αντικείμενο, antikeimeno;πράγμα, pragma)
B. MOVABLES AND IMMOVABLES – COMPONENT PARTS AND ACCESSORIES (κινητά, kinita; ακίνητα, akinita;συστατικά, systatika; παραρτήματα, parartimata)
C. FUNGIBLES (αντικαταστατά, antikatastata)
D. CONSUMABLES (αναλωτά, analota)
E. THINGS ‘OUT OF COMMERCE’ (εκτός συναλλαγής, ektos synallagis)
F. FRUITS (καρποί, karpoi) AND PROFITS (ωφελήματα,ofelimata)
III. POSSESSION (νομή, nomi)
IV. OWNERSHIP (κυριότητα, kyriotita)
A. Acquisition of Ownership
B. ORIGINAL ACQUISITION (πρωτότυπη κτήση,prototypi ktisi)
C. DERIVATIVE ACQUISITION (παράγωγη κτήση,paragogi ktisi)
D. Protection of Ownership
V. PREDIAL AND PERSONAL SERVITUDES(πραγματικές και προσωπικές δουλείες, pragmatikes kai prosopikes douleies)
VI. RECORDATION (μεταγραφή, metagrafi)
VII. REAL SECURITY RIGHTS (εμπράγματη ασφάλεια,empragmati asfaleia)
Bibliography
Chapter 8 Urban and Regional Planning and Zoning
I. Overview
II. Constitutional Framework
III. Planning Legislation
IV. Planning Institutions
V. Types of Plans
A. National Level
B. Regional Level
C. Local Level
VI. Building Regulations and Main Permits
Basic Bibliography
A. Books
B. Articles and Other Publications
Chapter 9 Family Law
I. Introduction
II. MARRIAGE (γάμος, gamos)
A. ENGAGEMENT TO MARRY (μνηστεία, mnisteia; Arts1346–1349 CC)
B. Essential Requisites of Marriage, Requirements, and Impediments (Arts 1350–1360 CC)
C. The Celebration of Marriage (Arts 1367–1371 CC)
D. Nullity of Marriage (Arts 1372–1384 CC)
E. Personal Effects of Marriage (Arts 1386–1390, 1396 CC)
F. Matrimonial Property (Arts 1397–1416 CC)
G. Interruption of Marital Life (Arts 1391–1395 CC)
III. DIVORCE (διαζύγιο, diazygio)
A. Grounds (Arts 1438–1440 CC)
B. Procedure (Arts 1438, 1441 CC)
C. Effects of Divorce (Arts 1442–1446, 1513 CC)
IV. Parent and Child
A. Medically-assisted Reproduction (Arts 1455–1460 CC)
B. KINSHIP AND FILIATION (συγγένεια, syngeneia; καταγωγή,katagogi; Arts 1461–1474 CC)
C. Children Born Out of Wedlock (Arts 1475–1484 CC)
V. ADOPTION (υιοθεσία, yiothesia)
A. The Legal Situation
B. Conditions (Arts 1542–1559 CC)
C. Effects (Arts 1560–1578 CC)
D. Adoption of Adults (Arts 1579–1588 CC)
VI. Legal Effects of Filiation
A. Name, Domicile, and Nationality of a Child (Arts 1505–1506 CC)
B. Obligation for Mutual Assistance and Affection (Arts 1507–1509 CC)
C. SUPPORT AND MAINTENANCE OBLIGATIONS (διατροφή απότο νόμο, diatrofi apo to nomo; Arts 1485–1504 CC)
VII. Protection of Minors and of Persons Incapable of Administering Their Own Estates
A. PARENTAL CARE AND CUSTODY (γονική μέριμνα, gonikimerimna; επιμέλεια, epimeleia; Arts 1510–1541 CC)
B. GUARDIANSHIP OF MINORS (επιτροπεία ανηλίκων,epitropeia anilikon; Arts 1589–1653 CC)
C. PLACEMENT OF MINORS WITH FOSTER FAMILIES (αναδοχή ανηλίκου, anadohi anilikou; Arts 1655–1665 CC)
D. JUDICIAL ASSISTANCE (δικαστική συμπαράσταση,dikastiki symparastasi; Arts 1666–1688 CC)
E. ADMINISTRATION OF OTHER PERSONS’ AFFAIRS (δικαστική επιμέλεια ξένων υποθέσεων, dikastiki epimeleia xenonhypotheseon; Arts 1689–1694 CC)
Selected Bibliography
A. Books and Commentaries (in Greek)
B. Books and Articles (in languages other than Greek)
Chapter 10 The Law of Succession
I. Introduction
II. Succession in General
A. Devolution of Succession – Acceptance by Heirs (Arts 1710–1711, 1846, 1901 CC)
B. Acceptance under the Benefit of Inventory (Arts 1902–1912 CC)
C. RENUNCIATION OF SUCCESSION (αποποίηση κληρονομίας,apopoiisi klironomias; Arts 1847–1859 CC)
D. UNWORTHINESS OF HEIR (κληρονομική αναξιότητα,Klironomiki anaxiotita; Arts 1860–1864 CC)
E. VACANT SUCCESSION (σχολάζουσα κληρονομία,scholazousa klironomia; Arts 1865–1870 CC)
F. CERTIFICATE OF INHERITANCE (κληρονομητήριο,klironomitirio; Arts 1956–1966 CC)
G. ACTION FOR THE DELIVERY OF POSSESSION OF ASSETS OFTHE ESTATE (αγωγή περί κλήρου, agogi peri klirou; Arts1871–1883 CC)
H. Methods by which Successors, Other than Heirs, Are Established
1. Legacy (κληροδότημα, klirodotima; Arts1967–2010 CC)
2. Fideicommissum (καταπίστευμα, katapisteuma;Arts 1923–1941 CC)
3. Modus (τρόπος, tropos; Arts 2011–2016 CC)
4. Gift Mortis Causa (δωρεά αιτία θανάτου, dorea aitiathanatou; Arts 2032–2035 CC)
5. Agreements of Inheritance (Art. 368 CC)
III. INTESTATE SUCCESSION (εξαδιαθέτου διαδοχή, exadiathetou diadochi)
A. Classes of Intestate Heirs (Arts 1813–1824 CC)
B. ACCRETION (προσαύξηση, prosauxisi; Arts1807, 1808, 1823 CC)
C. COLLATION (συνεισφορά, syneisfora;Arts 1895–1900 CC)
IV. TESTAMENTARY SUCCESSION (διαδοχή εκδιαθήκης, diadochi ek diathikis)
A. CAPACITY TO MAKE A WILL (Arts 1716, 1717, 1719, 1720,1723, 1748 CC)
B. Form of Wills
C. Ordinary Wills
1. Holographic Will (ιδιόγραφη διαθήκη,idiografi diathiki; Arts 1721, 1722 CC)
2. Public Will (δημόσια διαθήκη, dimosiadiathiki; Arts 1724–1737 CC)
3. Mystic (Secret) Will (μυστική διαθήκη,mystiki diathiki; Arts 1738–1747 CC)
D. EXTRAORDINARY WILLS
1. Wills Made at Sea (Arts 1749–1752, 1756 CC)
2. Military Will (Arts 1753–1755 CC)
3. Will During Blockade (Arts 1757–1762 CC)
E. Contents of Testamentary Dispositions (Arts 1781–1812 CC)
F. VALIDITY OF WILLS (Arts 138, 1718,1781–1788, 1796 CC)
G. SUBSTITUTION OF TESTAMENTARY HEIR (υποκατάσταση κληρονόμου εκ διαθήκης, ypokatastasi klironomou ekdiathikis; Arts 1809–1812 CC)
H. Revocation of Wills (XXXXX, anaklisi diathikis
H. REVOCATION OF WILLS (ανάκληση διαθήκης, anaklisidiathikis; Arts 1763–1768 CC)
I. Publication of Wills (Arts 1769–1780 CC)
J. THE EXECUTOR OF THE WILL (εκτελεστής διαθήκης,ektelestis diathikis; Arts 2017–2031 CC)
V. FORCED HEIRSHIP (νόμιμη μοίρα,nomimi moira)
A. Forced Heirs (Arts 1825–1826 CC)
B. The Legitimate Portion and Its Protection (Arts 1825–1838 CC)
VI. DISINHERISON (αποκλήρωση, apoklirosi; Arts1839–1845 CC)
VII. RELATIONS OF THE HEIR WITH THE SUCCESSION CREDITORS, HIS CO-HEIRS,AND THIRD PERSONS
A. JUDICIAL LIQUIDATION OF SUCCESSION (δικαστική εκκαθάριση της κληρονομίας, dikastiki ekkatharisi tis klironomias; Arts 1913–1922 CC)
B. COMMUNITY AMONG HEIRS (κοινωνία κληρονόμων,koinonia klironomon; Arts 1884–1894 CC)
C. SALE OF THE ESTATE (Arts 1942–1955 CC)
BASIC BIBLIOGRAPHY
Chapter 11 Commercial Law
I. Introductory Remarks and General Provisions
II. Bankruptcy Law
A. Ordinary Bankruptcy
B. Compulsory Administration of Enterprises and Agreement with Creditors
III. COMMERCIAL PAPER (αξιόγραφα, axiografa)
A. BILLS OF EXCHANGE AND PROMISSORY NOTES(συναλλαγματικές, synallagmatikes; γραμμάτια ειςδιαταγήν, grammatia eis diatagin)
1. Bills of Exchange
2. Promissory Notes
B. CHECKS (τραπεζικές επιταγές, trapezikes epitages)
C. COMMERCIAL MONEY ORDERS (εμπορικές εντολές πληρωμής, emporikes entoles pliromis)
D. COMMERCIAL IOUS (χρεωστικά ομόλογα εμπόρων,chreostika omologa emporon)
E. Warehouse Receipts
IV. INDUSTRIAL PROPERTY (βιομηχανική ιδιοκτησία,viomichaniki idioktisia)
A. UNFAIR COMPETITION (αθέμιτος ανταγωνισμός,athemitos antagonismos)
B. Trade Names and Trademarks
1. Trade Names
2. Distinctive Titles
3. Distinctive Signs
4. Protection
5. Trademarks (σήματα, simata)
C. INDICATIONS OF SOURCE AND APPELLATIONS OF ORIGIN(ενδείξεις προελεύσεως, endeixeis proeleuseos)
D. PATENTS (διπλώματα ευρεσιτεχνίας, diplomata euresitechnias)
E. Utility Models and Industrial Designs
V. INTELLECTUAL PROPERTY (πνευματική ιδιοκτησία,pneumatiki idioktisia)
A. The Rights of the Author
B. Transfer and Licenses
C. Limitations
D. Related Rights
E. Enforcement
VI. Antitrust Law
VII. Banking Law
A. The Banking System
B. Private Banking Law
VIII. PRIVATE INSURANCE (ιδιωτική ασφάλιση,idiotiki asfalisi)
A. Sources of Law
B. General Principles of Insurance Law
1. The Policy
2. Conclusion of the Contract – Obligation to Inform – Right to Withdraw or to Rescind
3. Description of Risk, Increase and Decrease of Risk
4. Payment of Premium
5. Occurrence of the Event
C. Non-life Policies
1. General Principles
2. Fire Insurance
3. Transport Insurance
4. Liability Insurance
5. Other Policies
D. Life Policies
E. Life Policies of an Investment Nature
F. Regulation of Insurance Business
Bibliography
A. General Part of Commercial Law
B. Bankruptcy and Reorganization of Undertakings
C. Commercial Paper
D. Law of Competition and Industrial Property
E. Intellectual Property
F. Banking
G. Insurance
Chapter 12 Business Associations
I. Introduction
A. General
B. Stock Markets
II. CORPORATION (ανώνυμη εταιρία, AE,anonymi etairia; société anonyme; Arts 29 et seq.LC, Arts 888–900 CC, Law 2190/1920, as amended and codified)
A. Formation
B. CHARTER (καταστατικό, katastatiko; statuts)
C. CAPITAL (κεφάλαιο, kefalaio)
D. MEETINGS OF SHAREHOLDERS (γενικές συνελεύσεις μετόχων, genikes syneleuseis metochon)
1. Convocation
2. Quorum, Voting
3. Authority
E. BOARD OF DIRECTORS (διοικητικό συμβούλιο, dioikitiko symvoulio; conseil d’administration) AND OFFICERS
F. Special Protection of Minority Shareholders
G. DIVIDENDS (μερίσματα, merismata)
H. STATUTORY AUDITORS (ελεγκτές, elengktes)AND FINANCIAL STATEMENTS
I. TRANSFORMATION, CONSOLIDATION, DIVISION, DISSOLUTION,LIQUIDATION (μετατροπή, metatropi; συγχώνευση,synchoneusi; διάσπαση, diaspasi; λύση, lysi; εκκαθάριση,ekkatharisi)
J. Penal Provisions
K. Conclusion
III. CLOSE CORPORATION (εταιρία περιορισμένης ευθύνης, ΕΠΕ, etairia periorismenis euthynis, EPE; société à responsabilité limitée; Law 3190/1955, Presidential Decree 419/1986)
A. Formation and Charter
B. Capital
C. Meetings of Members
D. Management and Interested Transactions
E. Distribution of Profits
F. Retirement of Members – Dissolution, Liquidation, Merger, Transformation
IV. GENERAL PARTNERSHIP (ομόρρυθμη εταιρία, OE,omorrythmi etairia, OE; société en nom collectif; Arts18–22, 24, 39, 41–44, 64 LC)
V. LIMITED PARTNERSHIP (ετερόρρυθμη εταιρία, EE,eterorrythmi etairia, EE; société encommandite; Arts 23 et seq., 38 LC)
VI. SILENT PARTNERSHIP (αφανής εταιρία,afanis etairia; société en participation; Arts47–50 LC)
Bibliography
A. In Greek
B. In Languages Other than Greek
Chapter 13 Private Maritime Law
I. Meaning and Object
A. Ship and Static Floating Structure
B. Private, Public, National, and International Relations
II. Sources
A. National Sources
1. The Code of Private Maritime Law
2. The Code of Public Maritime Law
3. Deeds Approving Registration of Ships as Foreign Capital
4. General Provisions
B. International Sources
1. Multilateral Conventions
2. Bilateral Conventions
III. Ships and Floating Structures as Objects
A. Legislative Meaning of the Ship
B. Individual Definition of the Ship
C. Ship’s Nationality
IV. Ships and Floating Structures as Means of Credit
A. Ship Mortgage
1. Simple Ship Mortgage (υποθήκη επί πλοίων, ypothiki epi ploion; Arts 195–204 CPr.ML)
2. Preferential Ship Mortgage (προτιμώμενη υποθήκηεπί πλοίων, protimomeni ypothiki epi ploion; LawDecree 3899/1958)
B. MARITIME LIENS (ναυτικά προνόμια, nautika pronomia)
1. The Maritime Liens in Particular
2. Exercise of Maritime Liens
C. Seizure of Ship
1. Arrest of Ship (συντηρητική κατάσχεση πλοίου, syntiritiki kataschesi ploiou)
2. Seizure Against Ship (αναγκαστική εκτέλεση επί πλοίου, anangastiki ektelesi epi ploiou)
V. Ship-owner and Operator
A. THE SHIP-OWNER (πλοιοκτήτης, ploioktitis)
B. THE OPERATOR (εφοπλιστής, efoplistis)
C. Limitation of Liability
VI. Ship Personnel
A. THE MASTER (πλοίαρχος, ploiarchos)
B. THE CREW (πλήρωμα, pliroma)
VII. Contracts Concerning Ship Exploitation
A. CONTRACT OF AFFREIGHTMENT (σύμβαση ναύλωσης,symvasi naulosis)
B. Contract of Carriage of Goods by Sea (XXXXX, symvasi thalassias metaforas pragmaton)
B. CONTRACT OF CARRIAGE OF GOODS BY SEA (σύμβαση θαλάσσιας μεταφοράς πραγμάτων, symvasi thalassias metaforas pragmaton)
C. Contract of Carriage of Passengers by Sea
VIII. Marine Incidents
A. COMMON OR GENERAL AVERAGE (κοινή αβαρία,koini avaria)
B. COLLISION BETWEEN SHIPS (σύγκρουση πλοίων,syngrousi ploion)
C. ASSISTANCE AT SEA AND SALVAGE (επιθαλάσσια αρωγήκαι διάσωση, epithalassia arogi kai diasosi)
D. SHIPWRECKS (ναυάγια, nauagia)
IX. MARINE INSURANCE (θαλάσσια ασφάλιση, thalassia asfalisi)
Basic Bibliography
Chapter 14 Labor Law
I. Introduction
II. Individual Labor Relations
A. Individual Work Relations
B. Classes of Employees
C. The Employer
D. Mediation in Hiring
E. Terms of Work
1. Work Time
2. Health, Safety, and Injury at Work
F. Wages
G. Remaining Obligations of the Employer Apart from Wages
H. General Principles
I. Dissolving a Work Relationship (Work Contract)
1. Indefinite Agreements
2. Fixed-term Agreements
J. Flexible Work Terms
III. Collective Labor Law
A. Collective Negotiation
B. Mediation and Arbitration
C. Work Council
D. Strike
Basic Bibliography
Chapter 15 Social Insurance Law
I. Introduction
II. Organization and Administration of Social Insurance
A. Multiplicity of Social Insurance Systems
B. Self-governance of Social Insurance Institutions
III. Financing of Social Insurance
A. Insurance Contributions
B. Social Sources and State Economic Support
IV. Social Insurance Benefits
A. Key Characteristics
B. Prerequisites of Insurance Benefits
C. Types of Insurance Benefits
Basic Bibliography
Chapter 16 Judicial Organization and Civil Procedure
I. Introduction
II. Judicial Organization
A. Principles
B. Ordinary Civil Courts
C. Ordinary Administrative Courts
D. Judicial Independence
E. Judicial Staff
III. Jurisdiction and Competence
A. Definitions
B. Subject-matter Competence
C. Territorial Competence
D. Exclusive Jurisdictions
E. Concurrent Jurisdictions
F. Prorogation
G. Review of Jurisdictional Issues
IV. Parties and Types of Actions
A. Capacity and Standing to Sue
B. Types of Actions
V. Procedural Principles
A. The Dominant Position of the Parties
B. Concentration on the First Hearing
C. Oral and Written Proceedings
D. Good Faith and Morality
VI. Ordinary Proceedings in First Instance
A. Commencement of the Action
B. Contents of the Complaint
C. Pleadings
D. Defenses and Counterclaims
E. Default
F. Attempt at Conciliation
G. Court Costs and Legal Aid
VII. Evidence
A. Ordering Evidence
B. Subject-matter of Proof
C. Burden of Proof
D. Means of Proof
E. Documentary Evidence
F. Administration of Evidence
G. Evaluation of Evidence
VIII. Appeals and Scope of Review
A. Function and Distinctions of the Methods of Appeal
B. Reopening of Default
C. Regular Appeal
D. Reopening of Contested Judgments
E. Cassation
IX. Effects of Judgments
A. Drafting and Contents of Judgments
B. Binding Effects of Judgments
C. Claim and Issue Preclusion
D. Preclusion with Respect to Non-parties
E. Time Limits of Res Judicata
X. Special Proceedings and Provisional Remedies
A. Function of Special Proceedings
B. Groups of Special Proceedings
C. Common Procedural Features
D. Provisional Remedies
XI. Non-contentious Proceedings
A. Doctrinal Foundation
B. Examples of Non-contentious Matters
C. Procedural Features
XII. Arbitration
A. Legislative Status
B. Arbitration Agreement
C. Arbitral Procedure
D. Authority of Arbitrators
E. Control by the Ordinary Courts
XIII. Enforcement Proceedings
A. Enforceable Instruments
B. Creditor’s Initiative and Control by the Court
C. Execution With Respect to Specific Performance
D. Execution to Satisfy a Money Claim
Bibliographical Note
A. Treatises
B. Commentaries by Article
Chapter 17 Conflict of Laws, International Jurisdiction, and Recognition and Enforcement of Judgments and Awards
I. Conflict of Laws
A. Introduction
B. Obligations
1. Contracts
(a) The Civil Code
(b) International Conventions
2. Torts
C. Property
D. Domestic Relations
1. Marriage
(a) Creation
(b) Spousal Relationships
(c) Dissolution
(d) Jurisdiction, Recognition, and Enforcement
2. Parents-Children
(a) Relationship
(b) Legitimation and Adoption
(c) Jurisdiction, Recognition, and Enforcement
(d) International Aspects
E. Descent and Distribution
F. Legal Entities, Corporations
G. Maritime Law
H. General Matters
1. Renvoi
2. Public Policy
3. Statutes of Limitation
4. Nationality, Habitual Residence, Domicile
5. Proof of Foreign Law
II. International Jurisdiction of the Greek Courts
III. Recognition and Enforcement of Foreign Judgments, Orders, and Arbitral Awards
Bibliography
A. Choice of Law
1. Contracts
2. Torts
3. Family Law and Descent and Distribution
4. Legal Entities
5. Maritime Law
6. Other
B. International Jurisdiction and Foreign Judgments
Chapter 18 Nationality and the Law of Aliens
I. Law of Nationality
A. Introduction
B. Acquisition
C. Loss of Nationality
D. Recovery of Nationality
E. Other Nationality Issues
1. Marriage
2. Procedural Issues
II. The Law of Aliens
A. Introduction
B. Entry and Denial Thereof
C. Residence Permits
1. Residence Permit for Employment (Arts 14–23)
2. Other Residence Permits
3. Residence Permits Granted for Exceptional Reasons (Arts 44–45)
4. Residence Permits Granted to Victims of Human Trafficking (Arts 46–52)
5. Residence Permits Granted for Family Reunification (Arts 53–60)
6. Residence Permits of Indefinite Duration (Art. 91 II)
7. Residence Card for Family Members of a Greek National or a National of Another European Union Country (Arts 61–64)
D. The Status of Aliens Who Are Long-term Residents of Greece (Arts 67–69)
E. Social Integration, Rights, and Duties of Third-country Nationals
1. Social Integration (Arts 65–66)
2. Rights and Duties (Arts 71–73)
F. Duties of Civil Servants, the Administration, Employers, and Transporters (Arts 84–88)
G. Deportation
1. Administrative Deportation (Arts 76–82)
2. Protection Against Deportation (Art. 79)
3. Undesirable Aliens (Art. 82)
H. Additional Remarks
1. Prevalence of Public International Law and of Community Law
2. Better Treatment of Third-country Nationals of Greek Descent
3. Refugees
4. Legalization Efforts for Illegal Migrants
5. Non-acquisition of Immovable Property in Border Regions
Selected Bibliography
A. Nationality
1. In Greek
2. In Languages Other than Greek
B. The Law of Aliens
1. In Greek
2. In Languages Other than Greek
Chapter 19 Tax Law and Investment Incentives
I. Introduction
II. INCOME TAXATION (φóρος εισοδήματος, foros eisodimatos)
A. General Principles
B. Taxation of Natural Persons
C. Taxation of Legal Entities
D. Bilateral Treaties for the Avoidance of Double Taxation
III. Other Direct Taxes
A. Donation, Succession, and Lottery Gains Taxation
B. Sizable Real Estate Property Tax (Paid by Owner – FMAP)
C. Taxation of Ships and Shipping Enterprises
D. Capital Gains Tax
E. Revaluation Tax
IV. Indirect Taxation
A. Transaction Taxes
1. Value Added Tax (VAT; φόρος προστιθέμενης αξίας –ΦΠA, foros prostithemenis axias – FPA)
2. Stamp Tax (χαρτόσημο, chartosimo)
3. Turnover Tax (φóρoς κύκλου εργασιών,foros kyklou ergasion)
4. Capital Concentration Tax (φóρoς συγκεντρώσεως κεφαλαίov, foros syngentroseos kefalaiou)
B. Sales Taxes
C. REAL ESTATE TRANSFER TAX (φóρoς μεταβιβάσεως ακινήτων, foros metavivaseos akiniton) AND TRANSACTION TAX (τέλος συναλλαγής, telos synallagis)
D. IMPORT DUTIES AND TAXES (δασμoί, dasmoi;φόροι εισαγωγής, foroi eisagogis)
E. Other Taxes
F. Recapitulation of Transaction Taxes on Real Estate
V. Municipal Taxes and Taxes in Favor of Third Parties
A. MUNICIPAL TAXES (δημοτικοί φóρoι,dimotikoi foroi)
B. TAXES IN FAVOR OF THIRD PARTIES(φóρoι υπέρ τρίτων, foroi yper triton)
VI. Enforcement of Tax Laws–Penalties–Litigation
VII. Investment Incentives
A. General
B. Development Regions and Qualifying Investments
C. CAPITAL AID (επιχορήγηση, epichorigisi), LEASING SUBSIDY (επιδότηση χρηματοδοτικής μισθωσης,epidotisi chrimatodotikis misthosis), WAGES SUBSIDY(επιδότηση απασχóλησης, epidotisi apascholisis)
D Requirements for Capital Aids
E. TAX-FREE RESERVES (αφορολόγητα αποθεματικά, aforologita apothematika)
F. Other Investment Incentives
Bibliography
Chapter 20 Criminal Law and Procedure
I. Historical Development and Sources
II. Substantive Criminal Law
A. General Principles
1. The Two Functions of Criminal Law
2. The Nullum Crimen, Nulla Poena Sine Lege Principle
3. Jurisdiction of the Greek State in Penal Matters
B. The Structure of the Criminal Offense
1. The Definition and Elements of an Offense
2. An Act or Omission
3. An Outline of the Method of Analysis
4. Justification
5. Imputability and Guilt
6. The Elements of Imputability
(a) Capacity to Appreciate and Conform
(b) Mental Culpability
(c) Human Possibility to Comply with the Law
7. Grounds for Non-punishment
C. Special Forms of Crime
1. Attempt
2. Accomplices
D. Penal Sanctions
1. Penalties (ποινές, poines)
2. Measures of Security (μέτρα ασφαλείας,metra asfaleias)
3. Sentencing
E. Special Part
1. Homicide (ανθρωποκτονία, anthropoktonia)
2. Abortion (άμβλωση, amvlosi)
3. Bodily Injury (σωματική βλάβη, somatiki vlavi)
4. Torture (βασανιστήρια, vasanistiria)
5. Theft (κλοπή, klopi)
6. Embezzlement (υπεξαίρεση, ypexairesi)
7. Fraud (απάτη, apati)
8. Offenses related to Narcotic Drugs(ναρκωτικά, narkotika)
9. Offenses related to Antiquities(αρχαιότητες, archaiotites) and Cultural Heritage
III. Criminal Procedure
A. Institutions
1. The Criminal Courts
2. The Public Prosecutor’s Office
B. Persons Involved in Criminal Proceedings
1. The Judiciary
2. The Parties
(a) The Defendant (κατηγορούμενος, katigoroumenos)
(b) The Civil Claimant (πολιτικώς ενάγων,politikos enagon)
(c) The Third Party under Civil Liability(αστικώς υπεύθυνος, astikos ypeuthynos)
C. Outline of the Procedure
1. Stages and Principles
2. The Pre-trial Stage
3. Procedure before the Judicial Councils (Indictment Chambers)
4. The Main Proceedings (Trial Phase)
(a) The Preparatory Stage
(b) The Trial
(c) Appeals
(d) Double Jeopardy
(e) Extradition and Mutual Assistance in Penal Matters
Basic Bibliography
A. Books
1. In English
2. In Greek
B. Articles and Contributions to Collective Works (selective list in foreign languages, mostly after 1980)
1. In English
2. In German
3. In French
Appendices
I. Statutes and Statutory Instruments
A. Greek Law
B. Community Law
1. Regulations
2. Directives
II. International Conventions
III. Cases
A. Greek Cases
1. Supreme Special Court (SSC)
2. Council of State (SE)
3. Areios Pagos (AP)
4. Courts of Appeal (CA, DE)
5. Courts of First Instance (DP, JP, MP, PP)
6. Non-judicial Decisions
B. European Court of Justice (ECJ)
C. Other
Index
Index of Greek Words
Back Cover

Citation preview

INTRODUCTION TO

GREEK LAW EDITED BY KONSTANTINOS D. KERAMEUS PHAEDON J. KOZYRIS THIRD REVISED EDITION

ANT. N. SAKKOULAS PUBLISHERS

Introduction to Greek Law

General Editors of the Series: Tuˇgrul Ansay and Don Wallace, Jr. Introduction to Belgian Law (2001) Introduction to German Law (second edition 2005) Introduction to Greek Law (third edition 2007) Introduction to Hungarian Law (1998) Introduction to the Law of Israel (1995) Introduction to Italian Law (2002) Introduction to Polish Law (2005) Introduction to the Law of South Africa (2004) Introduction to Swiss Law (third edition 2004) Introduction to Turkish Law (fifth edition 2005) Introduction to the Law of the United States (second edition 2002)

Introduction to Greek Law Third Revised Edition Edited by

Konstantinos D. Kerameus Professor of Law (emer.) Athens University

Phaedon J. Kozyris Professor of Law (emer.) Thessaloniki and Ohio State Universities

KLUWER LAW INTERNATIONAL/ANT. N. SAKKOULAS PUBLISHERS

GENERAL EDITORS OF THE SERIES Tugˇ rul Ansay, Professor of Law, Koç University, I˙stanbul and

Don Wallace, Jr. Professor of Law, Georgetown University, Director International Law Institute, Washington, D.C. Published by: Kluwer Law International P.O. Box 316 2400 AH Alphen aan den Rijn The Netherlands

Sold and distributed in Greece by: Ant. N. Sakkoulas Publishers 69 Solonos Str. 10679 Athens Greece Tel. +30 210 3618198 Fax. +30 210 3610425 E-mail: [email protected]

Sold and distributed in North, Central and South America by: Aspen Publishers, Inc. 7201 McKinney Circle Frederick, MD 21704 USA

Sold and distributed in all other countries by: Turpin Distribution Services Ltd. Stratton Business Park Pegasus Drive Biggleswade Bedfordshire SG18 8TQ United Kingdom

A C.I.P. catalogue record for this book is availble from the Library of Congress. Printed on acid-free paper web-ISBN 978-90-411-5543-6

© 2008 Kluwer Law International All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, mechanical, photocopying, recording or otherwise, without prior written permission of the publishers. Permission to use this content must be obtained from the copyright owner please apply to: Kluwer Law International, Wolters Kluwer Legal, 76 Ninth Avenue, 7th floor, New York, NY 10011, United States of America. E-mail: permissions@ kluwerlaw.com. Website: www.kluwerlaw.com

Preface to the Third Edition

Given the extensive changes that Greek law has undergone the past 15 years or so, the purpose of this third edition is twofold: first, to bring the text up-to-date; and second, to complement the text with the presentation of additional areas of law that had not been addressed previously. This exciting endeavor saw us reunite once more with dear colleagues who reviewed their texts with renewed interest. The work of those who have departed and are greatly missed was undertaken by other equally-skilful professionals while others compiled altogether new chapters. To all of the authors, we extend our thanks and gratitude. Further, the editors wish to express their appreciation of the overall assistance by Alexander Fessas, trainee lawyer at the Athens Bar, in the preparation of this volume. His painstaking and untiring review of language and authority, and, particularly, his expert work on the appendices and the index and his checking of references and citations, has made a significant contribution, which we acknowledge with sincere thanks. The third-edition chapters are current at least as of June 2006. In many instances, additional information was subsequently inserted by the authors, bringing the updating up to late December of the same year. Bearing in mind that the present publication remains, to this day, the sole comprehensive summary of Greek law in a language other than Greek, let us wish that modern-day legal professionals will consult this third edition with the same level of interest and enthusiasm as has been the case with the previous two. February 1, 2007

The Editors

v

Preface to the Second Edition

The main purpose of this revision is to update the original text. In the process, however, we took the opportunity to refine and improve the contents, and improve some references to particular cases in a few of the chapters. We also added tables of statutes, conventions and cases for easier reference. Most chapters are current at least as of March 31, 1992 and in a few instances, e.g. taxes or social insurance, the updating was carried forward to October 31, 1992. Special thanks are due not only to the authors, who undertook to review their texts, to the people at Kluwer who helped with the publication, but also to Professors A. Antapassis, E. Perakis, F. Skorini and S. Vrellis for making useful suggestions in the revision process of some chapters. It is self-understood, of course, that they are not responsible for any remaining errors or omissions. We are also indebted to Chr. Manolakis, C. Gana and A. Mantakou, lawyers in Athens, who did cite-checking and updated the indexes. Particularly, Chr. Manolakis set up three additional tables and provided thoughtful editorial assistance. October 31, 1992

The Editors

Preface to the First Edition

Greek law traces its roots to very ancient times and its main body is inextricably intertwined with the Roman-Byzantine tradition for reasons of history, geography, culture, and language. The civil law system in Europe continues the same tradition. More recently, the law of modern Greece, highly and extensively codified, has been influenced, in many ways, by German, French and Swiss prototypes, and by the grand masters of the Continental legal science. This is the first time that a comprehensive, albeit summary, text on Greek law appears in English – or, for that matter, in any language other than Greek. The need for it has become even more apparent now that Greece has become a member of the European Communities, and legal intercourse across the borders has unfolded as a matter of everyday life. Our project brings together some of the best authorities on Greek law in Greece and in the United States. As editors, we have chosen not to force on them specific formulae of exposition or style. Some texts follow very closely the codes which govern their respective fields, while others highlight only the main points, concentrating on the comparative law aspects and on differences with the corresponding concepts in the Anglo-American system. Basic bibliography, selected by the authors themselves, accompanies each contribution. Additional references are also, in some instances, to be found in the form of footnotes. The book describes the law of Greece as of January 1, 1988. The chapters were written by their authors in English, and it was they who put them in final form following the comments of the editors. Some attempt was made to conform the terminology and spelling to the American rather than to the English usage. The biographical data appear at the beginning of the volume. We take this opportunity to express our gratitude to our authors for their efforts, their collaboration and their patience with our editorial interference. Thanks are also due to Professors T. Ansay and Don Wallace Jr., the general editors of the series, and to Dr. D. Boss, Mr. A. van der Veen Vonk and Ms. A. de Visser of Kluwer Law and Taxation Publishers for their help and understanding

x

Preface to the First Edition

during the various stages of the project. Finally, we would like to state our appreciation for the hard and effective work done by Mr. Panageotis Tridimas, a lawyer doing graduate work in England, in compiling the two indexes. The index of Greek words was then expanded thanks to the assistance of Ms. C. Gana, Ms. M. Papasaranti and Mr. G. Trantas, graduate students in Athens; the latter also provided extensive help during proofreading. The editors wish to dedicate this volume to the memory of Dimitrios I. Evrigenis, a mentor, colleague, and friend who suddenly passed away while work was still in progress. A firm believer in the value of comparative law, he deeply and permanently contributed to transnational legal studies in Greece through his writings, teaching and organizational activities as professor at the University of Thessaloniki, Judge of the European Court of Human Rights in Strasbourg and member of the European Parliament. What is more, Dimitrios Evrigenis had a profound knowledge and understanding of the Anglo-American system. An attempt to promote communication beyond systematic differences and historical deviations seems to touch the heart of his intellectual heritage. Konstantinos D. Kerameus

February 1, 1988 Phaedon John Kozyris

Abbreviations and Explanation of Terms

Latin numerals following an article number of a code or other comprehensive enactment denote paragraphs, and the Arabic numerals following thereafter denote subparagraphs; thus, 417 II 2 denotes the second subparagraph of the second paragraph of article 417, and 454.1 denotes the first subparagraph of article 454 consisting of only one paragraph. Translations of Greek legislation excerpts have been made by the author of the Chapter where the excerpt appears, unless otherwise noted. To avoid repetition, the use of the masculine pronoun includes the feminine, unless otherwise indicated by the context. Finally, the date appearing next to an Internet reference denotes the date of last access. In the following table appear only the principal abbreviations which are actually used in the book; for a list of the current Greek legal periodicals and other materials see below, Chapter 2. AP Arch.N ASE BGB CA CAP CC CCiv.P CCrim.P CGN Chr.ID CMLR

Areios Pagos Archeio Nomologias Athens Stock Exchange German Civil Code Court of Appeals Code of Administrative Procedure Civil Code Code of Civil Procedure Code of Criminal Procedure Code of Greek Nationality Chronika Idiotikou Dikaiou Common Market Law Review

xii Const. CPA CPr.ML CPub.ML D DD DE DEE DFN DP DtA ECHR ECJ ECR EC Treaty ed. EDKA edn eds EEA EEEur.D EEmp.D EEN EErg.D EEur.Koin. e.g. ENautil.D ES etc. et seq. EUR EU Treaty fasc. ftn. ftns GG

Abbreviations and Explanation of Terms Constitution of 1975/1986/2001 Certified Public Accountant Code of Private Maritime Law Code of Public Maritime Law Dike Dioikitiki Diki Administrative Court of Appeals Dikaio Epihiriseon kai Etairion Deltio Forologikis Nomothesias Administrative Court of First Instance Dikaiomata tou Anthropou European Convention of Human Rights European Court of Justice European Court Reports Treaty Establishing the European Community editor Epitheorisis Dikaiou Koinonikis Asfaliseos edition editors European Economic Area Helliniki Epitheorisi Europaikou Dikaiou Epitheorisis tou Emporikou Dikaiou Ephimeris Hellinon Nomikon Epitheorisis Ergatikou Dikaiou Epitheorisi ton Europaikon Koinotiton exempli gratia Epitheorisi Nautiliakou Dikaiou Court of Audit et cetera et sequitur Euro(s) Treaty on European Union fascicule footnote footnotes Government Gazette

Abbreviations and Explanation of Terms GNP GRD Harm. HCC Hell.Dni ibid. ICC ICSID i.e. IKA ILO IMF in f. ITC JFam.L J.Leg.Studies JöR N.F. JP Krit.Epith. L LaLR LC LD L&Pol.Int’lBus. MD Mod.LR MP NGO NL NoB OECD OJ C OJ L PC Peir.N

xiii

Gross national product Greek Drachma(s) Harmenopoulos Hellenic Competition Commission Helliniki Dikaiosyni ibidem International Chamber of Commerce International Center for the Settlement of Investment Disputes id est Social Insurance Organization International Labor Organization International Monetary Fund in fine Income Tax Code Journal of Family Law Journal of Legal Studies Jahrbuch des öffentlichen Rechts, Neue Folge Justice of Peace Kritiki Epitheorisi Law Louisiana Law Review Law on Commerce Law Decree Law and Policy in International Business Ministerial Decision Modern Law Review Civil One-member Court of First Instance Non-governmental Organization Necessity Law Nomiko Vima Organization for Economic Cooperation and Development Official Journal of the European Union, series C Official Journal of the European Union, series L Penal Code Peiraiki Nomologia

xiv PkD PP RCDIP RD RHDI RIDC SE SSC Sur.Com.L ToS Tul.LR UN USD vol. vols

Abbreviations and Explanation of Terms Perivallon kai Dikaio Civil Multi-member Court of First Instance Revue critique de droit international privé Royal Decree Revue hellénique de droit international Revue internationale de droit comparé Council of State Supreme Special Court Episkopisi Emporikou Dikaiou To Syntagma Tulane Law Review United Nations United States Dollar(s) volume volumes

Table of Contents

Prefaces

v

Abbreviations

xi

Chapter 1 Historical Development Athanassios N. Yiannopoulos

1

I. II.

Introduction Ancient Greek Law A. Early Law B. The Era of the Lawgivers C. Classical Law III. Hellenistic, Byzantine, and Post-Byzantine Law A. Hellenistic Law B. Byzantine Law C. Post-Byzantine Law IV. Modern Greek Law A. Constitutional History B. Codification of Civil Law Bibliography A. On Ancient Greek Law B. On Hellenistic, Roman, Byzantine and Post-Byzantine Law C. On the History of the Law of the Modern Greek State Chapter 2 Sources and Materials Anastasia Grammaticaki-Alexiou I. II. III. IV.

Legislation Custom Judicial Decisions Works of Legal Scholars

1 1 1 2 2 4 4 5 6 8 8 8 11 11 12 12 13 13 15 15 16

Table of Contents

xvi V. Materials Basic Bibliography A. In Greek B. In Other Languages Chapter 3 Constitutional and Administrative Law Prodromos D. Dagtoglou I.

II.

III.

IV.

The Constitution A. The New Constitution B. Amendments C. Emergency Law D. Constitution and International Law E. Constitution and the European Union – The Accession of Greece and Its Participation in European Integration Structure and Distribution of State Powers A. System of Government B. Distribution of State Power 1. Separation of Powers – Links Between the Legislative and Executive Branches 2. Shift of the Political Power Center under the 1975 Constitution – The 1986 and 2001 Amendments 3. Legislation 4. Finance 5. Executive 6. Judiciary C. State and Church The Main Organs of State A. Parliament 1. Composition and Election 2. Political Parties 3. Legal Status of Members of Parliament 4. Legislation and Parliamentary Control 5. Dissolution of Parliament B. The President of the Republic C. The Government 1. Constitutional States 2. Composition 3. Cabinet Committees Administration A. Central Government 1. Ministers – Ministries 2. Regional Authorities – Decentralization (αποκέντρωση, apokentrosi) 3. Independent and Regulatory Authorities

16 20 20 21 23 23 23 24 25 25 25 26 26 28 28 29 29 31 31 31 33 34 34 34 36 37 37 38 38 38 38 39 39 40 40 40 41 43

Table of Contents

Local Government (τοπική αυτοδιοίκηση, topiki autodioikisi) 43 1. Decentralization on Two Levels – Local Government Corporations – Towns and Villages 43 2. Local and Central Government Matters 45 3. Organization 46 4. Finance 47 5. State Supervision 47 C. Specialized Self-government 47 1. Legal Persons of Public Law (νομικά πρόσωπα δημοσίου δικαίου, nomika prosopa dimosiou dikaiou) 48 2. Public Corporations (δημόσιες επιχειρήσεις, dimosies epicheirisseis) 48 D. General Principles of Administrative Action 48 1. Legality of Public Administration 48 2. Discretionary Power 49 3. Administrative Acts 50 4. Reasons for Decisions and Right to Hearing 50 5. Void and Voidable Administrative Acts 50 6. Revocability of Administrative Acts 51 7. Administrative or Public Contracts 51 8. State Liability 52 9. Expropriation 52 Control of Public Administration and Judicial Review 53 A. Administrative Self-control 53 1. Hierarchical Control 53 2. Control by Independent Agencies 54 3. Formal Petitions 54 4. Administrative Supervision 54 5. Financial Control 54 6. Control by the Citizen’s Advocate (Ombudsman) 55 B. Parliamentary Control 55 C. Judicial Control 55 1. Administrative Courts – Judicial Review as a General Rule 55 2. Remedies before the Council of State – The Application for Annulment 56 Human Rights 57 A. Protection of Human Rights 57 1. Constitutional Protection 57 2. Protection by the European Convention of Human Rights and Fundamental Freedoms, and Other International Conventions 58 B. Main Problems Relating to the Protection of Human Rights in the Constitution 59 1. From an Individualistic to a Humanistic Orientation 59 2. Conflict and Synthesis: Private Ownership and Private Economic Activity 59 3. Summary 60 B.

V.

VI.

xvii

Table of Contents

xviii

C. Judicial Protection Bibliography A. Books B. Articles and Other Publications C. Textbooks of Constitutional Law, Administrative Law and Administrative Courts Procedure in Greek Published Since 2000 Chapter 4 Application of Community Law in Greece Vassilios A. Christianos I. II.

III.

A. B.

Introduction Introduction of Community Law into the Greek Legal Order: Recognition of Its Particular Status A. Supremacy of Community Law 1. Constitutional Foundations of Community Law Supremacy 2. A Relative Supremacy of Community Law over the Constitution? B. Direct Effect and Applicability: The Removal of Internal Barriers to the Effective Insertion of Community Law in the Greek Legal Order 1. Direct Effect of Primary Community Law 2. Direct Applicability of Regulations 3. Direct Effect of Directives (a) Specific Character of Directives (b) Reception of ECJ Decisions by Greek Courts 4. Law 1338/1983 Providing the Incorporation of Secondary Community Law in the Greek Legal Order Judicial Application of Community Law in Greece: The Guarantee of Community Law Effectiveness A. Cooperation between Greek Judges and the ECJ 1. Preliminary Reference of Article 234 EC Treaty: The Basis of Cooperation 2. The ECJ and Greek Courts: Conflict or Cooperation? B. Greek Cases: Extensive Compliance with the ECJ Bibliographical References Books and Studies 1. In Greek 2. In Languages Other than Greek Articles and Other Contributions 1. In Greek 2. In Languages Other than Greek

61 61 61 62 64 65 65 66 66 67 68 68 68 69 69 69 70 70 71 71 71 73 74 76 76 76 76 77 77 77

Table of Contents

xix

Chapter 5 The General Principles of Civil Law Symeon C. Symeonides

79

I. II.

III.

IV.

V.

VI. VII.

VIII.

Introduction: Scope and Function of Book I of the Civil Code Natural Persons (φυσικά πρόσωπα, fysika prosopa) A. Personality or Juridical Capacity (πρoσωπικότητα, prosopikotita; ικαvότητα δικαίου, ikanotita dikaiou) B. Commencement and Termination of Personality C. Absentia (αφάνεια, afaneia) D. Domicile E. Protection of Personality Legal or Juridical Persons (νομικά πρόσωπα, nomika prosopa) A. Categories of Legal Persons B. Some General Principles of the Law of Legal Persons 1. Formal Requirements 2. Personality 3. Seat (έδρα, edra) 4. Liability for Juridical Acts 5. Non-contractual and Delictual Liability Rights (δικαιώματα, dikaiomata) A. Meaning B. Abuse of Right (κατάχρηση δικαιώματoς, katachrisi dikaiomatos) C. ‘Deactivation’ of Right (αποδυνάμωση, apodynamosi) D. Self-help, Self-defense, Emergency (αυτοδικία, autodikia; άμυνα, amyna; κατάσταση ανάγκης, katastasi anangis) Juridical Acts (δικαιοπραξίες, dikaiopraxies) A. Definition B. Capacity (ικανότητα, ikanotita) C. Vices of Consent D. Form E. Formation of Contracts (σύναψη συμβάσεων, synapsi symvaseon) F. Consideration and Cause G. Content of Juridical Acts H. Nullities (ακυρóτητες, akyrotites) I. Interpretation Terms and Conditions Representation and Procuration A. Introduction B. Express, Implied, and Apparent Authority C. Undisclosed and Partially Disclosed Agency Prescription and Peremption

79 80 80 80 81 82 82 83 83 84 84 84 85 85 85 86 86 86 87 87 88 88 88 90 91 92 92 93 94 94 95 95 95 96 97 97

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A. Clarification of Terms 1. Prescription 2. Acquisitive Prescription and Prescription by Non-use 3. Peremption B. General Principles of Prescription 1. Commencement and Accrual 2. Suspension 3. Interruption 4. Extension, Reduction, Renunciation 5. Accrual Bibliography Chapter 6 Law of Obligations Phoebus Chr. Christodoulou I.

General Principles A. Sources of Obligation B. Obligation to Perform in General 1. Performance in Good Faith 2. Rules Relating to Particular Kinds of Performance (a) Things Described by Class (b) Promises in Money (c) Interest (d) Reparations (e) Obligation to Render Account/Obligation to Provide Inventory (f) Alternative Obligations 3. Part-performance 4. Performance by Third Parties 5. Place for Performance 6. Time for Performance 7. Responsibility for One’s Own Conduct 8. Responsibility for Employees C. Contractual Obligations D. Two-sided Contracts E. Non-performance of Obligations 1. Claim to Performance in Kind 2. Impossibility 3. Delay 4. Other Cases of Breach of Contract 5. Default of the Creditor F. Contractual Rescission G. Earnest and Penalty Clause

97 97 98 98 98 98 98 99 99 99 100 103 103 103 104 104 104 104 104 105 106 106 107 107 107 107 107 108 108 108 109 110 110 110 111 112 113 113 113

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II.

1. Earnest 2. Penalty Clause H. Contract for the Benefit of Third Parties Contract Burdening Third Parties I. Extinction of Obligations (απόσβεση ενoχών, aposvesi enochon) 1. Fulfillment 2. Deposit 3. Novation 4. Set-off 5. Merger 6. Release J. Assignment of Claims K. Assumption of Debt L. Joint and Several Obligations and Claims Specific Contracts A. Donation B. Sale and Exchange C. Lease D. Usufructuary Lease E. Contract for Services F. Contract for Work G. Brokerage Contract H. Reward I. Mandate J. Civil Company 1. The Civil Company Defined 2. Agreement and Legal Personality 3. Internal Operation: Rights and Obligations of the Partners (a) Contribution (b) Standard of Care (c) Administration (d) Administration by Delegated Power (e) Right to Check and Control (f) External Functioning and Representation (g) Joint Ownership (h) Partner Substitution (i) Sharing of Profits and Losses 4. Dissolution 5. Winding-up and Liquidation 6. The Question of Bankruptcy K. Community L. Loan M. Contract of Deposit

xxi 113 114 114 115 115 115 116 116 117 117 117 118 118 119 120 120 122 124 125 126 127 128 129 130 130 130 130 130 131 131 131 132 132 132 132 132 133 133 134 134 135 136

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N. Liability of Innkeepers (ευθύνη ξενoδόχων, euthyni xenodochon) O. Life Annuity P. Gaming and Betting Q. Guaranty R. Compromise S. Abstract Promise or Acknowledgment of Debt 1. Concept and Validity 2. Effect on the Burden of Proof 3. Formal Requirements T. Order to Pay or Deliver U. Bearer Bonds V. Production of Things and Documents III. Unjust Enrichment A. Scope of Application B. Defenses C. Directness of Transfer D. Extent of Liability in Restitution IV. Unlawful Acts (Torts, Delicts) A. The Area of Tort Law B. The Elements of Tort Liability C. Defamatory Rumors D. Unlawfulness E. Culpability F. Strict Liability G. Joint Tortfeasors H. Personal Injury and Death I. Consequences of Tort Liability: Remedies V. Fraudulent Conveyances A. Conditions B. Parties to the Action C. Effects Bibliography A. Books and Commentaries (in Greek) B. Articles in Law Reviews and Monographs (in languages other than Greek) C. Other Chapter 7 Property Athanassios N. Yiannopoulos I. II.

Introduction Things A. Object and Thing (αντικείμενο, antikeimeno; πράγμα, pragma)

137 138 138 139 140 140 140 140 141 141 143 144 145 145 145 145 146 146 146 146 147 147 147 147 148 148 148 149 149 150 150 151 151 151 152 153 153 154 154

Table of Contents Movables and Immovables – Component Parts and Accessories (κινητά, kinita; ακίνητα, akinita; συστατικά, systatika; παραρτήματα, parartimata) C. Fungibles (αντικαταστατά, antikatastata) D. Consumables (αναλωτά, analota) E. Things ‘Out of Commerce’ (εκτός συναλλαγής, ektos synallagis) F. Fruits (καρπoί, karpoi) and Profits (ωφελήματα, ofelimata) III. Possession (νομή, nomi) IV. Ownership (κυριότητα, kyriotita) A. Acquisition of Ownership B. Original Acquisition (πρωτότυπη κτήση, prototypi ktisi) C. Derivative Acquisition (παράγωγη κτήση, paragogi ktisi) D. Protection of Ownership V. Predial and Personal Servitudes (πραγματικές και προσωπικές δουλείες, pragmatikes kai prosopikes douleies) VI. Recordation (μεταγραφή, metagrafi) VII. Real Security Rights (εμπράγματη ασφάλεια, empragmati asfaleia) Bibliography

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B.

Chapter 8 Urban and Regional Planning and Zoning Georgia Giannakourou I. II. III. IV. V.

Overview Constitutional Framework Planning Legislation Planning Institutions Types of Plans A. National Level B. Regional Level C. Local Level VI. Building Regulations and Main Permits Basic Bibliography A. Books B. Articles and Other Publications Chapter 9 Family Law Anastasia Grammaticaki-Alexiou I. II.

Introduction Marriage (γάμος, gamos) A. Engagement to Marry (μνηστεία, mnisteia; Arts 1346–1349 CC)

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xxiv B.

Essential Requisites of Marriage, Requirements, and Impediments (Arts 1350–1360 CC) C. The Celebration of Marriage (Arts 1367–1371 CC) D. Nullity of Marriage (Arts 1372–1384 CC) E. Personal Effects of Marriage (Arts 1386–1390, 1396 CC) F. Matrimonial Property (Arts 1397–1416 CC) G. Interruption of Marital Life (Arts 1391–1395 CC) III. Divorce (διαζύγιο, diazygio) A. Grounds (Arts 1438–1440 CC) B. Procedure (Arts 1438, 1441 CC) C. Effects of Divorce (Arts 1442–1446, 1513 CC) IV. Parent and Child A. Medically-assisted Reproduction (Arts 1455–1460 CC) B. Kinship and Filiation (συγγένεια, syngeneia; καταγωγή, katagogi; Arts 1461–1474 CC) C. Children Born Out of Wedlock (Arts 1475–1484 CC) V. Adoption (υιοθεσία, yiothesia) A. The Legal Situation B. Conditions (Arts 1542–1559 CC) C. Effects (Arts 1560–1578 CC) D. Adoption of Adults (Arts 1579–1588 CC) VI. Legal Effects of Filiation A. Name, Domicile, and Nationality of a Child (Arts 1505–1506 CC) B. Obligation for Mutual Assistance and Affection (Arts 1507–1509 CC) C. Support and Maintenance Obligations (διατροφή από τo νόμo, diatrofi apo to nomo; Arts 1485–1504 CC) VII. Protection of Minors and of Persons Incapable of Administering Their Own Estates A. Parental Care and Custody (γονική μέριμνα, goniki merimna; επιμέλεια, epimeleia; Arts 1510–1541 CC) B. Guardianship of Minors (επιτροπεία ανηλίκων, epitropeia anilikon; Arts 1589–1653 CC) C. Placement of Minors with Foster Families (αναδoχή ανηλίκου, anadohi anilikou; Arts 1655–1665 CC) D. Judicial Assistance (δικαστική συμπαράσταση, dikastiki symparastasi; Arts 1666–1688 CC) E. Administration of Other Persons’ Affairs (δικαστική επιμέλεια ξένων υποθέσεων, dikastiki epimeleia xenon hypotheseon; Arts 1689–1694 CC) Selected Bibliography A. Books and Commentaries (in Greek) B. Books and Articles (in languages other than Greek)

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Chapter 10 The Law of Succession Anastasia Grammaticaki-Alexiou

201

I. II.

III.

IV.

Introduction Succession in General A. Devolution of Succession – Acceptance by Heirs (Arts 1710–1711, 1846, 1901 CC) B. Acceptance under the Benefit of Inventory (Arts 1902–1912 CC) C. Renunciation of Succession (αποποίηση κληρονομίας, apopoiisi klironomias; Arts 1847–1859 CC) D. Unworthiness of Heir (κληρονομική αναξιότητα, klironomiki anaxiotita; Arts 1860–1864 CC) E. Vacant Succession (σχολάζουσα κληρονομία, scholazousa klironomia; Arts 1865–1870 CC) F. Certificate of Inheritance (κληρονομητήριο, klironomitirio; Arts 1956–1966 CC) G. Action for the Delivery of Possession of Assets of the Estate (αγωγή περί κλήρου, agogi peri klirou; Arts 1871–1883 CC) H. Methods by which Successors, Other than Heirs, Are Established 1. Legacy (κληροδότημα, klirodotima; Arts 1967–2010 CC) 2. Fideicommissum (καταπίστευμα, katapisteuma; Arts 1923–1941 CC) 3. Modus (τρόπoς, tropos; Arts 2011–2016 CC) 4. Gift Mortis Causa (δωρεά αιτία θανάτου, dorea aitia thanatou; Arts 2032–2035 CC) 5. Agreements of Inheritance (Art. 368 CC) Intestate Succession (εξ αδιαθέτου διαδοχή, ex adiathetou diadochi) A. Classes of Intestate Heirs (Arts 1813–1824 CC) B. Accretion (προσαύξηση, prosauxisi; Arts 1807, 1808, 1823 CC) C. Collation (συνεισφορά, syneisfora; Arts 1895–1900 CC) Testamentary Succession (διαδοχή εκ διαθήκης, diadochi ek diathikis) A. Capacity to Make a Will (Arts 1716, 1717, 1719, 1720, 1723, 1748 CC) B. Form of Wills C. Ordinary Wills 1. Holographic Will (ιδιόγραφη διαθήκη, idiografi diathiki; Arts 1721, 1722 CC) 2. Public Will (δημόσια διαθήκη, dimosia diathiki; Arts 1724–1737 CC)

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3. Mystic (Secret) Will (μυστική διαθήκη, mystiki diathiki; Arts 1738–1747 CC) D. Extraordinary Wills 1. Wills Made at Sea (Arts 1749–1752, 1756 CC) 2. Military Will (Arts 1753–1755 CC) 3. Will During Blockade (Arts 1757–1762 CC) E. Contents of Testamentary Dispositions (Arts 1781–1812 CC) F. Validity of Wills (Arts 138, 1718, 1781–1788, 1796 CC) G. Substitution of Testamentary Heir (υποκατάσταση κληρoνόμoυ εκ διαθήκης, ypokatastasi klironomou ek diathikis; Arts 1809–1812 CC) H. Revocation of Wills (ανάκληση διαθήκης, anaklisi diathikis; Arts 1763–1768 CC) I. Publication of Wills (Arts 1769–1780 CC) J. The Executor of the Will (εκτελεστής διαθήκης, ektelestis diathikis; Arts 2017–2031 CC) V. Forced Heirship (νόμιμη μoίρα, nomimi moira) A. Forced Heirs (Arts 1825–1826 CC) B. The Legitimate Portion and Its Protection (Arts 1825–1838 CC) VI. Disinherison (αποκλήρωση, apoklirosi; Arts 1839–1845 CC) VII. Relations of the Heir with the Succession Creditors, His Co-heirs, and Third Persons A. Judicial Liquidation of Succession (δικαστική εκκαθάριση της κληρoνoμίας, dikastiki ekkatharisi tis klironomias; Arts 1913–1922 CC) B. Community Among Heirs (κoινωνία κληρoνόμων, koinonia klironomon; Arts 1884–1894 CC) C. Sale of the Estate (Arts 1942–1955 CC) Basic Bibliography Chapter 11 Commercial Law Nicholas A. Deloukas Revised by Evanghelos Perakis I. II.

III.

Introductory Remarks and General Provisions Bankruptcy Law A. Ordinary Bankruptcy B. Compulsory Administration of Enterprises and Agreement with Creditors Commercial Paper (αξιόγραφα, axiografa) A. Bills of Exchange and Promissory Notes (συναλλαγματικές, synallagmatikes; γραμμάτια εις διαταγήν, grammatia eis diatagin)

209 209 209 210 210 210 210 211 211 212 212 213 213 213 214 214 214 215 215 215 217

217 219 219 221 223 223

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IV.

V.

VI. VII. VIII.

1. Bills of Exchange 2. Promissory Notes B. Checks (τραπεζικές επιταγές, trapezikes epitages) C. Commercial Money Orders (εμπορικές εντολές πληρωμής, emporikes entoles pliromis) D. Commercial IOUs (χρεωστικά oμόλoγα εμπόρων, chreostika omologa emporon) E. Warehouse Receipts Industrial Property (βιομηχανική ιδιοκτησία, viomichaniki idioktisia) A. Unfair Competition (αθέμιτος ανταγωνισμός, athemitos antagonismos) B. Trade Names and Trademarks 1. Trade Names 2. Distinctive Titles 3. Distinctive Signs 4. Protection 5. Trademarks (σήματα, simata) C. Indications of Source and Appellations of Origin (ενδείξεις προελεύσεως, endeixeis proeleuseos) D. Patents (διπλώματα ευρεσιτεχνίας, diplomata euresitechnias) E. Utility Models and Industrial Designs Intellectual Property (πνευματική ιδιoκτησία, pneumatiki idioktisia) A. The Rights of the Author B. Transfer and Licenses C. Limitations D. Related Rights E. Enforcement Antitrust Law Banking Law A. The Banking System B. Private Banking Law Private Insurance (ιδιωτική ασφάλιση, idiotiki asfalisi) A. Sources of Law B. General Principles of Insurance Law 1. The Policy 2. Conclusion of the Contract – Obligation to Inform – Right to Withdraw or to Rescind 3. Description of Risk, Increase and Decrease of Risk 4. Payment of Premium 5. Occurrence of the Event C. Non-life Policies 1. General Principles

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xxviii 2. Fire Insurance 3. Transport Insurance 4. Liability Insurance 5. Other Policies D. Life Policies E. Life Policies of an Investment Nature F. Regulation of Insurance Business Bibliography A. General Part of Commercial Law B. Bankruptcy and Reorganization of Undertakings C. Commercial Paper D. Law of Competition and Industrial Property E. Intellectual Property F. Banking G. Insurance Chapter 12 Business Associations Phaedon John Kozyris I. II.

Introduction A. General B. Stock Markets Corporation (ανώνυμη εταιρία, AE, anonymi etairia; société anonyme; Arts 29 et seq. LC, Arts 888–900 CC, Law 2190/1920, as amended and codified) A. Formation B. Charter (καταστατικό, katastatiko; statuts) C. Capital (κεφάλαιο, kefalaio) D. Meetings of Shareholders (γενικές συνελεύσεις μετόχων, genikes syneleuseis metochon) 1. Convocation 2. Quorum, Voting 3. Authority E. Board of Directors (διοικητικό συμβούλιο, dioikitiko symvoulio; conseil d’administration) and Officers F. Special Protection of Minority Shareholders G. Dividends (μερίσματα, merismata) H. Statutory Auditors (ελεγκτές, elengktes) and Financial Statements I. Transformation, Consolidation, Division, Dissolution, Liquidation (μετατροπή, metatropi; συγχώνευση, synchoneusi; διάσπαση, diaspasi; λύση, lysi; εκκαθάριση, ekkatharisi)

254 254 254 255 255 256 256 257 257 258 258 259 259 259 260

261 261 261 263 266 266 268 268 271 271 272 272 273 276 277 277 278

Table of Contents J. Penal Provisions K. Conclusion III. Close Corporation (εταιρία περιορισμένης ευθύνης, ЕПЕ, etairia periorismenis euthynis, EPE; société à responsabilité limitée; Law 3190/1955, Presidential Decree 419/1986) A. Formation and Charter B. Capital C. Meetings of Members D. Management and Interested Transactions E. Distribution of Profits F. Retirement of Members – Dissolution, Liquidation, Merger, Transformation IV. General Partnership (oμόρρυθμη εταιρία, OE, omorrythmi etairia, OE; société en nom collectif; Arts 18–22, 24, 39, 41–44, 64 LC) V. Limited Partnership (ετερόρρυθμη εταιρία, EE, eterorrythmi etairia, EE; société en commandite; Arts 23 et seq., 38 LC) VI. Silent Partnership (αφανής εταιρία, afanis etairia; société en participation; Arts 47–50 LC) Bibliography A. In Greek B. In Languages Other than Greek Chapter 13 Private Maritime Law Anthony M. Antapassis I. II.

III.

IV.

Meaning and Object A. Ship and Static Floating Structure B. Private, Public, National, and International Relations Sources A. National Sources 1. The Code of Private Maritime Law 2. The Code of Public Maritime Law 3. Deeds Approving Registration of Ships as Foreign Capital 4. General Provisions B. International Sources 1. Multilateral Conventions 2. Bilateral Conventions Ships and Floating Structures as Objects A. Legislative Meaning of the Ship B. Individual Definition of the Ship C. Ship’s Nationality Ships and Floating Structures as Means of Credit A. Ship Mortgage

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1. Simple Ship Mortgage (υποθήκη επί πλοίων, ypothiki epi ploion; Arts 195–204 CPr.ML) 2. Preferential Ship Mortgage (πρoτιμώμενη υποθήκη επί πλοίων, protimomeni ypothiki epi ploion; Law Decree 3899/1958) B. Maritime Liens (ναυτικά πρoνόμια, nautika pronomia) 1. The Maritime Liens in Particular 2. Exercise of Maritime Liens C. Seizure of Ship 1. Arrest of Ship (συντηρητική κατάσχεση πλοίου, syntiritiki kataschesi ploiou) 2. Seizure Against Ship (αναγκαστική εκτέλεση επί πλoίoυ, anangastiki ektelesi epi ploiou) V. Ship-owner and Operator A. The Ship-owner (πλοιοκτήτης, ploioktitis) B. The Operator (εφοπλιστής, efoplistis) C. Limitation of Liability VI. Ship Personnel A. The Master (πλοίαρχος, ploiarchos) B. The Crew (πλήρωμα, pliroma) VII. Contracts Concerning Ship Exploitation A. Contract of Affreightment (σύμβαση ναύλωσης, symvasi naulosis) B. Contract of Carriage of Goods by Sea (σύμβαση θαλάσσιας μεταφοράς πραγμάτων, symvasi thalassias metaforas pragmaton) C. Contract of Carriage of Passengers by Sea VIII. Marine Incidents A. Common or General Average (κοινή αβαρία, koini avaria) B. Collision between Ships (σύγκρουση πλοίων, syngrousi ploion) C. Assistance at Sea and Salvage (επιθαλάσσια αρωγή και διάσωση, epithalassia arogi kai diasosi) D. Shipwrecks (ναυάγια, nauagia) IX. Marine Insurance (θαλάσσια ασφάλιση, thalassia asfalisi) Basic Bibliography Chapter 14 Labor Law Ioannis D. Koukiadis I. II.

Introduction Individual Labor Relations A. Individual Work Relations

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B. C. D. E.

320 321 322 322 322 323 323 324 324 324 325 326 326 326 327 327 329 329 329

Classes of Employees The Employer Mediation in Hiring Terms of Work 1. Work Time 2. Health, Safety, and Injury at Work F. Wages G. Remaining Obligations of the Employer Apart from Wages H. General Principles I. Dissolving a Work Relationship (Work Contract) 1. Indefinite Agreements 2. Fixed-term Agreements J. Flexible Work Terms III. Collective Labor Law A. Collective Negotiation B. Mediation and Arbitration C. Work Council D. Strike Basic Bibliography Chapter 15 Social Insurance Law Konstantinos D. Kremalis I. II.

Introduction Organization and Administration of Social Insurance A. Multiplicity of Social Insurance Systems B. Self-governance of Social Insurance Institutions III. Financing of Social Insurance A. Insurance Contributions B. Social Sources and State Economic Support IV. Social Insurance Benefits A. Key Characteristics B. Prerequisites of Insurance Benefits C. Types of Insurance Benefits Basic Bibliography Chapter 16 Judicial Organization and Civil Procedure Konstantinos D. Kerameus I. II.

Introduction Judicial Organization A. Principles

331 331 332 332 333 334 334 335 336 336 336 337 339 341 341 342 343

xxxii

III.

IV. V.

VI.

VII.

VIII.

IX.

Table of Contents B. Ordinary Civil Courts C. Ordinary Administrative Courts D. Judicial Independence E. Judicial Staff Jurisdiction and Competence A. Definitions B. Subject-matter Competence C. Territorial Competence D. Exclusive Jurisdictions E. Concurrent Jurisdictions F. Prorogation G. Review of Jurisdictional Issues Parties and Types of Actions A. Capacity and Standing to Sue B. Types of Actions Procedural Principles A. The Dominant Position of the Parties B. Concentration on the First Hearing C. Oral and Written Proceedings D. Good Faith and Morality Ordinary Proceedings in First Instance A. Commencement of the Action B. Contents of the Complaint C. Pleadings D. Defenses and Counterclaims E. Default F. Attempt at Conciliation G. Court Costs and Legal Aid Evidence A. Ordering Evidence B. Subject-matter of Proof C. Burden of Proof D. Means of Proof E. Documentary Evidence F. Administration of Evidence G. Evaluation of Evidence Appeals and Scope of Review A. Function and Distinctions of the Methods of Appeal B. Reopening of Default C. Regular Appeal D. Reopening of Contested Judgments E. Cassation Effects of Judgments A. Drafting and Contents of Judgments B. Binding Effects of Judgments

343 344 344 345 346 346 346 347 347 348 348 348 349 349 350 351 351 352 352 353 353 353 353 354 355 355 355 356 357 357 357 358 358 359 359 360 360 360 361 362 362 363 364 364 364

Table of Contents C. Claim and Issue Preclusion D. Preclusion with Respect to Non-parties E. Time Limits of Res Judicata X. Special Proceedings and Provisional Remedies A. Function of Special Proceedings B. Groups of Special Proceedings C. Common Procedural Features D. Provisional Remedies XI. Non-contentious Proceedings A. Doctrinal Foundation B. Examples of Non-contentious Matters C. Procedural Features XII. Arbitration A. Legislative Status B. Arbitration Agreement C. Arbitral Procedure D. Authority of Arbitrators E. Control by the Ordinary Courts XIII. Enforcement Proceedings A. Enforceable Instruments B. Creditor’s Initiative and Control by the Court C. Execution With Respect to Specific Performance D. Execution to Satisfy a Money Claim Bibliographical Note A. Treatises B. Commentaries by Article Chapter 17 Conflict of Laws, International Jurisdiction, and Recognition and Enforcement of Judgments and Awards Phaedon John Kozyris I.

Conflict of Laws A. Introduction B. Obligations 1. Contracts (a) The Civil Code (b) International Conventions 2. Torts C. Property D. Domestic Relations 1. Marriage (a) Creation (b) Spousal Relationships

xxxiii 365 365 366 366 366 367 367 368 369 369 369 370 370 370 371 371 372 372 373 373 373 374 374 375 376 376

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(c) Dissolution (d) Jurisdiction, Recognition, and Enforcement 2. Parents-Children (a) Relationship (b) Legitimation and Adoption (c) Jurisdiction, Recognition, and Enforcement (d) International Aspects E. Descent and Distribution F. Legal Entities, Corporations G. Maritime Law H. General Matters 1. Renvoi 2. Public Policy 3. Statutes of Limitation 4. Nationality, Habitual Residence, Domicile 5. Proof of Foreign Law II. International Jurisdiction of the Greek Courts III. Recognition and Enforcement of Foreign Judgments, Orders, and Arbitral Awards Bibliography A. Choice of Law 1. Contracts 2. Torts 3. Family Law and Descent and Distribution 4. Legal Entities 5. Maritime Law 6. Other B. International Jurisdiction and Foreign Judgments Chapter 18 Nationality and the Law of Aliens Zoe Papassiopi-Passia I.

Law of Nationality A. Introduction B. Acquisition C. Loss of Nationality D. Recovery of Nationality E. Other Nationality Issues 1. Marriage 2. Procedural Issues

387 387 388 388 388 389 390 391 392 395 396 396 396 396 396 397 397 399 402 402 402 403 403 404 405 405 406

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Table of Contents II.

The Law of Aliens A. Introduction B. Entry and Denial Thereof C. Residence Permits 1. Residence Permit for Employment (Arts 14–23) 2. Other Residence Permits 3. Residence Permits Granted for Exceptional Reasons (Arts 44–45) 4. Residence Permits Granted to Victims of Human Trafficking (Arts 46–52) 5. Residence Permits Granted for Family Reunification (Arts 53–60) 6. Residence Permits of Indefinite Duration (Art. 91 II) 7. Residence Card for Family Members of a Greek National or a National of Another European Union Country (Arts 61–64) D. The Status of Aliens Who Are Long-term Residents of Greece (Arts 67–69) E. Social Integration, Rights, and Duties of Third-country Nationals 1. Social Integration (Arts 65–66) 2. Rights and Duties (Arts 71–73) F. Duties of Civil Servants, the Administration, Employers, and Transporters (Arts 84–88) G. Deportation 1. Administrative Deportation (Arts 76–82) 2. Protection Against Deportation (Art. 79) 3. Undesirable Aliens (Art. 82) H. Additional Remarks 1. Prevalence of Public International Law and of Community Law 2. Better Treatment of Third-country Nationals of Greek Descent 3. Refugees 4. Legalization Efforts for Illegal Migrants 5. Non-acquisition of Immovable Property in Border Regions Selected Bibliography A. Nationality 1. In Greek 2. In Languages Other than Greek B. The Law of Aliens 1. In Greek 2. In Languages Other than Greek

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xxxvi Chapter 19 Tax Law and Investment Incentives John C. Dryllerakis I. II.

III.

IV.

V.

VI. VII.

Introduction Income Taxation (φόρoς εισοδήματος, foros eisodimatos) A. General Principles B. Taxation of Natural Persons C. Taxation of Legal Entities D. Bilateral Treaties for the Avoidance of Double Taxation Other Direct Taxes A. Donation, Succession, and Lottery Gains Taxation B. Sizable Real Estate Property Tax (Paid by Owner – FMAP) C. Taxation of Ships and Shipping Enterprises D. Capital Gains Tax E. Revaluation Tax Indirect Taxation A. Transaction Taxes 1. Value Added Tax (VAT; φόρος προστιθέμενης αξίας – ФПА, foros prostithemenis axias – FPA) 2. Stamp Tax (χαρτόσημο, chartosimo) 3. Turnover Tax (φόρoς κύκλου εργασιών, foros kyklou ergasion) 4. Capital Concentration Tax (φόρoς συγκεντρώσεως κεφαλαίου, foros syngentroseos kefalaiou) B. Sales Taxes C. Real Estate Transfer Tax (φόρος μεταβιβάσεως ακινήτων, foros metavivaseos akiniton) and Transaction Tax (τέλος συναλλαγής, telos synallagis) D. Import Duties and Taxes (δασμoί, dasmoi; φόροι εισαγωγής, foroi eisagogis) E. Other Taxes F. Recapitulation of Transaction Taxes on Real Estate Municipal Taxes and Taxes in Favor of Third Parties A. Municipal Taxes (δημοτικοί φόροι, dimotikoi foroi) B. Taxes in Favor of Third Parties (φόροι υπέρ τρίτων, foroi yper triton) Enforcement of Tax Laws–Penalties–Litigation Investment Incentives A. General B. Development Regions and Qualifying Investments C. Capital Aid (επιχορήγηση, epichorigisi), Leasing Subsidy (επιδότηση χρηματοδοτικής μίσθωσης, epidotisi chrimatodotikis misthosis), Wages Subsidy (επιδότηση απασχόλησης, epidotisi apascholisis)

431 431 432 432 436 438 440 442 442 443 443 444 446 446 446 446 448 448 448 449 449 450 450 450 451 451 452 452 454 454 455

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Table of Contents D E.

Requirements for Capital Aids Tax-free Reserves (αφορολόγητα αποθεματικά, aforologita apothematika) F. Other Investment Incentives Bibliography Chapter 20 Criminal Law and Procedure Dionysios D. Spinellis I. II.

Historical Development and Sources Substantive Criminal Law A. General Principles 1. The Two Functions of Criminal Law 2. The Nullum Crimen, Nulla Poena Sine Lege Principle 3. Jurisdiction of the Greek State in Penal Matters B. The Structure of the Criminal Offense 1. The Definition and Elements of an Offense 2. An Act or Omission 3. An Outline of the Method of Analysis 4. Justification 5. Imputability and Guilt 6. The Elements of Imputability (a) Capacity to Appreciate and Conform (b) Mental Culpability (c) Human Possibility to Comply with the Law 7. Grounds for Non-punishment C. Special Forms of Crime 1. Attempt 2. Accomplices D. Penal Sanctions 1. Penalties (ποινές, poines) 2. Measures of Security (μέτρα ασφαλείας, metra asfaleias) 3. Sentencing E. Special Part 1. Homicide (ανθρωποκτονία, anthropoktonia) 2. Abortion (άμβλωση, amvlosi) 3. Bodily Injury (σωματική βλάβη, somatiki vlavi) 4. Torture (βασανιστήρια, vasanistiria) 5. Theft (κλοπή, klopi) 6. Embezzlement (υπεξαίρεση, ypexairesi) 7. Fraud (απάτη, apati) 8. Offenses Related to Narcotic Drugs (ναρκωτικά, narkotika)

xxxvii 456 456 457 457 459 459 460 460 460 460 461 462 462 462 462 463 464 464 464 465 466 467 467 468 468 469 469 470 470 471 471 472 472 473 473 473 473 474

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9. Offenses Related to Antiquities (αρχαιότητες, archaiotites) and Cultural Heritage III. Criminal Procedure A. Institutions 1. The Criminal Courts 2. The Public Prosecutor’s Office B. Persons Involved in Criminal Proceedings 1. The Judiciary 2. The Parties (a) The Defendant (κατηγορούμενος, katigoroumenos) (b) The Civil Claimant (πολιτικώς ενάγων, politikos enagon) (c) The Third Party under Civil Liability (αστικώς υπεύθυνος, astikos ypeuthynos) C. Outline of the Procedure 1. Stages and Principles 2. The Pre-trial Stage 3. Procedure before the Judicial Councils (Indictment Chambers) 4. The Main Proceedings (Trial Phase) (a) The Preparatory Stage (b) The Trial (c) Appeals (d) Double Jeopardy (e) Extradition and Mutual Assistance in Penal Matters Basic Bibliography A. Books 1. In English 2. In Greek B. Articles and Contributions to Collective Works (selective list in foreign languages, mostly after 1980) 1. In English 2. In German 3. In French

474 475 475 475 476 477 477 477 477 478 478 479 479 479 480 480 480 481 482 482 483 484 484 484 484 485 485 486 487

Appendices I.

II.

Statutes and Statutory Instruments A. Greek Law B. Community Law 1. Regulations 2. Directives International Conventions

489 489 495 495 496 499

Table of Contents III.

Cases A. Greek Cases 1. Supreme Special Court (SSC) 2. Council of State (SE) 3. Areios Pagos (AP) 4. Courts of Appeal (CA, DE) 5. Courts of First Instance (DP, JP, MP, PP) 6. Non-judicial Decisions B. European Court of Justice (ECJ) C. Other

xxxix 511 511 511 511 512 514 515 515 516 516

Index

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Index of Greek Words

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Chapter 1

Historical Development Athanassios N. Yiannopoulos*

I.

INTRODUCTION

Greek law and legal thought have a history of more than 3,000 years, and constitute a still-living tradition. A brief introduction to this Greek legal tradition may be facilitated by distinguishing five great periods roughly corresponding with landmarks in the political and national history of Greece. These are: an ancient Greek period, up to the time Greece became a Roman province; a Hellenistic period, up to the foundation of the Byzantine empire; a Byzantine period, up to the fall of Constantinople; a post-Byzantine period, up to the Greek revolution of 1821 (the War of Greek Independence); and a modern period, from 1821 onwards. II.

ANCIENT GREEK LAW

A.

EARLY LAW

All information we have with regard to early Greek law is based on extralegal sources, such as mythology and epic poetry. Homer’s Iliad and Odyssey contain scattered but most valuable information as to the main features of the prevailing * Eason-Weinmann Professor of Comparative Law, Tulane University. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 1–12. © 2008, Kluwer Law International BV, The Netherlands.

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legal order: it was of tribal origin, primitive and ill-defined. Law issued from kindred groups and from the tribal government, the king, the elders, and the assemblies of the people. Tribal law, and the law of the early city-states as well, consisted of customary rules preserved by popular memory and considered to be immutable. Gods had laid down the fundamental ordinances but did not withhold their hands: from Zeus there came to every king, so Homer recites, the dooms (θεμιστές, themistes) according to which he settled disputes. Primitive legal institutions were confused with religious ideas and social customs, and the legal image that emerged was that of a patriarchal society governed by aristocratic rulers.

B.

THE ERA OF THE LAWGIVERS

From about the middle of the 7th century BC, and until the end of the 6th century BC, a great movement for codification swept the Greek world, which resulted in the acquisition by most city-states of elaborate written statutes, and even comprehensive codes, establishing substantive rules and procedures for the administration of justice. This legislation was the work of famous lawgivers. Lycurgus of Sparta (650 BC) may be a legendary personality, but Dracon (621 BC) and Solon (594 BC) of Athens, Zaleukus of Locroi Epizephyrii in South Italy, Charondas of Catana in Sicily, Philolaos of Thebes, Pheidon of Corinth, and the anonymous redactors of the laws of Gortyn in Crete, all lived and legislated for their cities and fellow citizens. The era of the lawgivers spans a period of about 150 years, during which citizens scored victories against absolutist rulers and paved the way towards democracy. The legal systems that emerged in the Greek world as a result of this legislative process became the first formally and substantively rational legal systems to flourish on the Continent. C.

CLASSICAL LAW

From the 5th century onwards, law was regarded in the Greek world as of human, rather than of divine origin. Religious ideas remained strong, but the institutions of public as well as private law reflected secular ideas of justice, liberty, autonomy, and autarchy. During the classical period, Greek law and legal thought reached maturity. From among the various fields of private law, one may dwell on welldefined institutions of the law of persons, the law of family, the law of property, the law of conventional and delictual obligations, and the law of successions. All fields of law were permeated by the uniquely Greek ideas of contractual freedom, publicity of transactions, and reliance on written documents. Apart from the fields of law that were proper to each city-state, there was a commercial law that was the true ‘Common Law’ of the Greek commonwealth. This law governed the relations of all Greek merchants, traders, and sailors from the cities on the coast of the Black Sea to the extremities of the Mediterranean basin. Under this law, all persons, citizens and aliens, had equal rights.

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The commercial law contained branches of maritime law, including carriage of goods, banking law, and procedures for the settlement of disputes. Its character was cosmopolitan; rapidity of transactions, absence of formalities and even-handed administration of justice were paramount. Among the substantive institutions of that law, which deserve special mention, are: the maritime loan, agency, and the use of the abstract document. Commercial law was administered as universal law by arbitrators and by special courts sitting in most maritime cities, including Athens, Rhodes, Syracuse, and Marseilles. The law of the classical period, however, never developed into a systematic discipline. There was no class of professional lawyers in classical Greece performing the function of the Roman iuris consulti. There were λογογράφοι and συνήγοροι (logografoi and synigoroi; speech-writers and orators) who represented parties before the lay courts and had practical familiarity with the laws of the city; but their main concern was to secure a favorable verdict from the mass juries rather than analyze the legal system and develop its institutions. There were also philosophers who were mainly concerned with the ideal of justice, the sources and function of law; for them, positive law was just a temporal expression of the reality of life in a city-state. Legal philosophy and comparative law have their origins in the works of Plato, Aristotle and Theophrastus, but the origin of systematic elaboration on a legal system is to be found in the works of the Roman jurisconsults. One of the best-studied judicial systems of the classical era is that of Athens. In the 4th century BC, there were numerous courts in Athens, consisting of either lay judges sitting alone or of jurors sitting in panels of 200 to 6,000 men, presided over by a magistrate. The jurisdiction of each court was determined according to the sum claimed and the object of litigation. The bulk of civil litigation came before the Forty Archons (Άρχοντες, Archontes), a judicial body elected each year by lot from among all citizens, sitting in panels of four. Suits involving more than ten drachmas were assigned to a public arbitrator, elected from the official list made each year by the Forty Archons. The arbitrator’s duty was to make an effort to effect a settlement. If he failed, he had the power to proceed and render judgment on the merits on the basis of all available evidence. His decision, however, was subject to appeal. The appeal, at the instance of the losing party, was tried by a jury presided over by one of the Archons. All testimonial evidence, reduced to writing, had to be submitted at least one day before the hearing, and, as a rule, no additional evidence could be introduced. Witnesses were sworn in civil matters only when the other party demanded it. However, they were not too trustworthy; money frequently induced them to perjury. In one notorious case, 15 witnesses testified under oath to the death of a woman who was subsequently brought to the court in perfect health! Both public and private litigation ordinarily began with a formal summons to the defendant to present himself before the competent court on a specified date. Before the smaller panels of judges or jurors, litigants ordinarily handled their claims alone; but when a case was presented before a large panel, litigants could,

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with the permission of that jury, have other persons assist them or even act on their behalf. Attorney’s fees were considered to be contrary to equality, as offering an advantage to the rich, and were forbidden by law. Attorneys, however, were frequently hired in practice, whether directly or indirectly, and the law does not appear to have been enforced. The laws were inscribed on wood or marble in the royal portico where the Chief Archon had his office and were recorded in the Metroon (Μητρώον; Registry) where they were easily accessible to all. Moreover, publicity was secured by the constitutional requirement that all proposed laws and amendments should be adequately published, and by the participation of most citizens in the annual court of revision. Athenian tribunals were not bound by precedents. Consequently, an Athenian counsel or litigant was not expected to familiarize himself with the recorded body of case law. However, as no judge or juror could fail to be impressed by a precedent, even if he were at liberty to disregard it, cases were frequently cited in court. Demosthenes not only cited cases in his speeches, but he also sought to distinguish adverse precedents. In private suits, each party paid his own court fees. In case the plaintiff failed to receive in his favor at least one-fifth of the votes cast, he was bound to pay to the State one-sixth of the amount of the damages he had claimed. This proved to be a strong deterrent of frivolous claims and ‘strike’ suits. Judgments were executed by the aggrieved creditors themselves. Litigants who refused to satisfy a judgment could be disenfranchised by administrative action. Athenians were fond of litigation and regarded it as a pleasant pastime. In Aristophanes’ comedies, there are humorous descriptions of ancient trials, such as the trial of the dog-seizer in the Wasps; in another comedy, a map of Greece is shown to Socrates but the great philosopher cannot be convinced that the chart pictures Greece, for he can nowhere see a jury in session! III.

HELLENISTIC, BYZANTINE, AND POST-BYZANTINE LAW

A.

HELLENISTIC LAW

In world history, the Hellenistic period begins with the death of Alexander the Great in 323 BC and the founding of the Hellenistic monarchies by his Macedonian successors. It ends with the absorption of these monarchies into the Roman Empire. The year 30 BC, when Egypt came under the Roman rule, is generally considered to mark the end of the period. In terms of legal history, however, the landmarks differ. In Greece, Greek law continued to exist and apply to the relations of the indigenous populations at least until the year 146 BC, when Corinth, the last remaining free city, was destroyed by the Romans, and possibly until the year 212 AD, when Roman law was made applicable to the relations of most inhabitants of the Roman Empire. In the Hellenistic monarchies, a body of Hellenistic law

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applied to the Greek and Hellenized inhabitants of Egypt, Palestine, Syria, Asia Minor, and other countries of the ancient Near East. This law was essentially of Greek origin and a part of the Greek civilization that the Macedonians disseminated. It was a ‘Common Law’ of all Greek-speaking people, the very people who spoke and developed the ‘Hellenistic Common’ language (Ελληνιστική Κοινή γλώσσα, Ellinistiki Koini glossa) from a variety of ethnic dialects. The private Hellenistic law appears to be universal, despite certain influences from local sources; however, it was otherwise in the fields of public law where the local influences were much more pronounced. Knowledge of Hellenistic law is derived from legal as well as extra-legal sources. Papyri, parchments and inscriptions, on which contracts, petitions and records of lawsuits are reported, abound and continue to be the object of intense study. For centuries, Roman law, Greek law and Hellenistic law lived and grew side by side. The principle of ‘personality’ of the law was a fundamental precept of most ancient systems of law, including Greek law, Roman law and Hellenistic law. Thus, Greek law governed the relations of the subject Greek populations in Greece while Roman law applied to the legal relations of Roman citizens in Greece. In the Hellenistic monarchies, however, the principle of personality was gradually displaced by a freedom of choice: everybody was allowed to choose the system of law he wished to be governed by. Quite routinely, the language used by the parties in a legal document determined the applicable law. These conditions prevailed well into the 2nd century AD. In the year 212 AD, however, the celebrated Constitutio Antoniniana of Emperor Caracalla granted Roman citizenship to practically all inhabitants of the vast empire, and thus, theoretically, Roman law became applicable to the relations of all citizens, regardless of ethnic extraction. The following centuries witnessed a struggle between native laws and imperial Roman law; and though Roman law finally prevailed and was able to displace Greek law and Hellenistic law in the official administration of justice, the victory was not achieved without compromise. The strict and inflexible Roman law had by that time been deeply influenced by Greek philosophical and legal thought and had become a Roman-Greek law, an Ius Greco-Romanum. The Justinian legislation of the 6th century AD that concluded this development was predominantly the product of the Hellenic eastern provinces of the empire and largely reflected the work of the law schools of Constantinople and Beirut. B.

BYZANTINE LAW

In spite of Emperor Justinian’s prohibition of scientific elaboration on his monumental legislation, Greek translations, indices and paratitla, which were permitted, offered an opportunity for comment and scientific treatment and contributed to a further hellenization of early Byzantine law. Moreover, the Novellae of Justinian, written mostly in Greek, those of his successors, written entirely in Greek, and the iconoclastic legislation of the Isaurian dynasty in the 8th century AD, were rooted

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in an unofficial Greek law that continued to live as custom. Direct connection with the Greek legal tradition was particularly apparent in the Ecloga (740 AD) of Emperor Leo III and in three collections titled Soldier’s, Farmer’s and Sea Law, attributed to the same emperor. The Isaurian legislation, though later repealed as heretic, continued to influence all further Byzantine legislation. The same trend – a return to Greek sources – is apparent in the legislative efforts of the Macedonian Dynasty (9th and 10th centuries AD). The Procheiros Nomos and the Epanagoge of Emperor Basil I, while designed to substitute for the repealed Isaurian legislation, in effect preserved its very substance. Finally, the Basilica of Emperor Leo the Wise, the most important Byzantine recodification of Justinian legislation, as well as the Eparchikon Biblion, dealing with guilds and associations, and several Novellae of the same emperor and of his successors, resulted in a complete hellenization of the law. The foundation of the new law school of Constantinople by Emperor Constantine IX in 1045 gave new impetus to legal studies. In the following centuries several collections of considerable legal significance appeared, such as the Epitome Legum, Ecloga Privata, Synopsis Basilicorum, Peira (a collection of judicial precedents) and several Canones, Nomocanones and Syntagmata, dealing with the canon law of the Greek Orthodox Church. The Hexabiblos of Harmenopoulos, compiled by a local judge in Thessaloniki in 1345, was one of the last Byzantine collections. Byzantine law, representing a fusion of Roman tradition, Christian ethics and Greek legal thought, exercised a deep influence on the legal systems of most eastern European and Balkan countries. In Byzantine law, attention was focused on equity, not as a distinct set of rules separate from those of a strict law, but as a built-in humanization of the whole legal system. In this spirit, old modes of procedure were simplified and freed of the excessive formalism that characterized the Roman actions, and substantive rules of law were altered in line with the teachings of Greek philosophy and Christian ethics. The new spirit affected all branches of private law. In the law of persons, a new measure of protection was accorded to minors and other incompetents. In the law of family, the institution of marriage acquired a prominent position, and the previously unlimited authority of the husband over his wife and children was curbed. In the law of property, protection was accorded to the small agricultural owner and the serf, and the idea of family ownership of property found fertile ground for development. In the field of the law of succession, the law governing intestacy was streamlined, and the idea of a forced heirship took hold. Finally, in the field of the law of obligations, the subjective element of liability, that is fault, was stressed, and a debtor was accorded relief against unscrupulous or greedy creditors. C.

POST-BYZANTINE LAW

The fall of Constantinople in 1453 and the conquest of the Byzantine Empire by the Turks mark the beginning of a fourth period in the history of Greek law.

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Byzantine law did not become extinct but continued to regulate private relations among the Greeks. And, perhaps as a unique phenomenon in legal history, the law of a subjugated people not only was retained in force but also was allowed to expand and to become the subject of further elaboration. Several reasons may account for this development. The religious character of Turkish law limited its application to controversies among Muslim subjects; and the Turkish judge (khadi), who was originally entrusted with the administration of justice among all subjects, was supposed to apply personal Christian law in controversies among Christians. Thus Byzantine law was formally kept in force. Further, the Turkish sultans granted a number of privileges and a large measure of self-government, which was exercised by elected or appointed local authorities and by the church. The Patriarch of Constantinople was accorded the status of head of a nation, and gradually the patriarchate and the several metropoleis (μητροπόλεις) in the provinces became administrative and cultural centers of Hellenism. Because of growing nationalistic tendencies and because of the practices of the Turkish judges, who were naturally inclined to extend the application of Turkish law even to controversies among Christians, Greeks would go to local authorities and to the church for settlement of their disputes rather than to the khadi. In the course of the centuries, the jurisdiction of the local authorities and of the church, which was originally in the nature of arbitration, became clearly judicial and was extended from the fields of family law and succession to those of obligations and criminal law. It was in this way that an incipient system of courts emerged with the local authorities in the lower level, bishop’s courts in the metropoleis functioning as courts of appeal, and the Patriarchal Synod in Constantinople acting as the court of last resort. Local authorities and ecclesiastical courts applied Byzantine law as it had been epitomized in several synoptical collections, such as the Hexabiblos of Harmenopoulos, which was most frequently used. At the same time, several local customs had emerged that were given the force of law by the courts and that in some instances, as in the islands of the Aegean Sea, were codified. By local custom and through scientific elaboration, new institutions emerged, which brought the Byzantine law into line with western European developments. Thus, direct agency became possible and contractual transactions were freed of most formal requirements; and the law of partnership and other associations, as well as the law of banking and exchange, became modernized. Apart from collections of local customs and some synodical circulars regulating questions of family law and succession, the written sources of Greek law during the post-Byzantine period are scanty. Of extraordinary significance in this regard are the codes of the Danube principalities that were governed by Greek envoys of the sultan. All such codes were written in the Greek language and reproduced Byzantine law par excellence. The Constitution of Alexander Ypsilantis (1780), the Code of Wallachia of John Caratzas (1818), the Code of Moldavia of Callimachis (1817), and the Syntagma of Michael Photinopoulos (1765) – a summary of the Basilica in Modern Greek, are among the first codifications in Western Europe.

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IV.

MODERN GREEK LAW

A.

CONSTITUTIONAL HISTORY

The Greek revolution of 1821 marks the beginning of a new era in the history of Greek law. The first revolutionary assembly adopted, in Epidaurus (1822), a liberal and democratic Constitution modeled on the French Declaration of the Rights of Man. A second Constitution (Astros, 1823) established a powerful parliament, and a third Constitution (Troizena, 1827), while still in principle liberal and democratic, vested all executive functions in a single man, the Governor Ioannis Capodistrias. Capodistrias, a native of the Ionian Islands and a former cabinet minister of the Russian Tsar, dissolved Parliament, and governed Greece with the assistance of an appointed consultative senate until his assassination in 1831. His death threw Greece into anarchy and chaos, and order was re-established only with the arrival of young King Otto (1833). Greece was governed for a while by a regency council, and then after Otto’s majority, by the King himself as an absolute monarch. A successful revolution in 1844 compelled the King to grant a Constitution along the lines of the French Charter of 1830, which made Greece a constitutional monarchy. Another revolution in 1862 overthrew Otto, and two years later a new democratic Constitution was proclaimed by King George I. This Constitution recognized the sovereignty of the people and vested all legislative authority in Parliament and the King. For the first time, universal male suffrage by secret ballot was guaranteed. As a result of a bloodless and peaceful revolution, the 1864 Constitution was revised in 1911. During and following World War I, the revised Constitution was suspended a number of times, and it finally was replaced in 1927 by a Constitution that abolished kingship. The monarchy, however, was restored in 1935, and the 1911 Constitution was reintroduced. This, however, was quickly rendered inoperative during the Metaxas dictatorship (1936–1941). Following World War II, a new constitutional revision was undertaken. It resulted in the adoption of the 1952 Constitution, which was another version of the 1911 Constitution. A coup d’état in 1967 resulted in the establishment of a military dictatorship, vital provisions of the Constitution were suspended and absolutism reigned. In July 1974, the Turkish invasion of Cyprus precipitated the fall of the dictatorship. Democratic institutions were quickly restored, a national plebiscite confirmed Greece’s regime as that of a parliamentary republic with a strong presidency, and in 1975 an elected Parliament voted on a new Constitution, which is basically the one in force. A second and far more extensive constitutional amendment was affected in 2001, and a third is currently in preparation (see Chapter 3, Section I B). Thus, parliamentary democracy has been firmly established in Greece for years. B.

CODIFICATION OF CIVIL LAW

Recognizing an uninterrupted legal tradition, the first two revolutionary Constitutions designated ‘the law of our ever-memorable Byzantine Emperors’ as the

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main source of Greek civil law. In the 1827 Constitution, however, a wish was expressed that all future Codes should be based on French models. The influence of French doctrine and legislation in Greece may actually be traced to the years preceding the revolution, at a time when parts of the French Commercial Code of 1807 had been translated into Greek and were in use among Greek merchants, and to a Greek Criminal Code of 1823 based on that of France. In spite of the constitutional wish, the adoption of French models was mainly confined to these two codes, and the Code Napoléon, though seriously considered, did not become a Greek civil code. Governor Capodistrias, clearly disregarding the constitutional directive, designated the Byzantine laws as the source of Greek civil law, and in 1830 announced his plan for collecting and classifying them in an orderly fashion. This work was never accomplished. Under King Otto four major codes, based on French and Bavarian models, were drafted by the Bavarian lawyer G.L. von Maurer, a member of the regency council. Of these, the one dealing with civil procedure, as amended by subsequent acts, remained in force until 1968, when it was replaced by a new Code of Civil Procedure (see Ch. 16, Section I); the second on the organization of courts was totally repealed as late as 1988 (Art. 113 I(a) of Law 1756/1988). The other two, the Penal Code and the Code of Criminal Procedure, had already been replaced by modern codes in 1951 (see Ch. 20, Section I). Maurer did not draft a Civil Code. An adherent of the historical school of jurisprudence, he believed that native institutions and ideas of law should prevail at least with regard to civil law, and, accordingly, started collecting local customs and current interpretations of Byzantine laws that were regarded as manifesting the spirit of the people. This project was interrupted by his dismissal from the regency council in 1835. Subsequently, a Royal Decree of 1835 declared that ‘the civil laws of the Byzantine emperors contained in the Hexabiblos of Harmenopoulos shall remain in force till the promulgation of the civil code whose drafting we have already ordered’ and that ‘customs, sanctioned by long and uninterrupted use or by judicial decisions, shall have the force of law wherever they prevail.’ This Decree became the cornerstone of the edifice of civil law in Greece, and profoundly influenced the path of the law during the next 100 years. Perhaps because of inadequacies in Harmenopoulos’ compilation, the scarcity of copies of the Hexabiblos and the increasing elaboration of Roman law by the Pandectists in Germany, the Greek courts adopted a broad interpretation of the Decree. Thus the entire Byzantine legislation from Justinian’s time up to the dissolution of the empire, contained not only in the Hexabiblos but in any collection, was reintroduced in modern Greece. For this purpose, the work of the German Pandectists was not only useful but almost necessary. And Greek legal thought, which had been oriented almost exclusively toward France, became increasingly oriented toward Germany. Indeed, by the end of the century the redaction of the German Civil Code seemed to set a pattern for future codification. But at the same time, Greek jurists developed a more critical attitude and proceeded to new legislative efforts by evaluating achievements in western continental countries.

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In accord with the Decree of 1835, a committee was appointed to draft a new Civil Code. Although the final objective of the committee was not realized, its preparatory work resulted in important legislation in the field of civil law, including a comprehensive statute entitled ‘Civil Law’ in 1856. This contained a variety of provisions, including rules on conflict of laws, rules pertaining to the validity and non-retroactivity of the law, and regulations involving registration of births, marriages, and deaths. A draft Civil Code of 1874, based on French, Italian, and Saxon models, was not adopted, partly because of constitutional difficulties. In the meanwhile, Greek legislation had been introduced in 1866 to the Ionian Islands; later, in 1882, to the newly liberated provinces of Thessaly and Epirus; and, in 1914, to the islands of the Aegean, Crete, and Macedonia. However, special provision was made regarding the Ionian Civil Code (1841), the Civil Code of Samos (1899), the Civil Code of Crete (1904), and the Code of Civil Procedure of Crete (1880), which were allowed to remain in force. This situation gave rise to a conflict of local laws and increased the pressure for a new Civil Code that would apply throughout the State. After another attempt at codification failed in 1922, a new five-member committee was appointed to the task in 1930. This committee published a series of drafts up to 1937, and in the following year Professor G. Balis of the University of Athens was appointed to co-ordinate them. His project was successful and resulted in the passage of the Civil Code of 1940. The backbone of this Code was Byzantine law, the national Greek tradition dressed in modern clothes. Far from being a revolutionary codification, it reproduced to a large extent law that was already in force, developed by judicial decisions and scholarly elaboration. The comparative method was also widely used, and an attempt was made to modernize and systematize the law by employing legislative techniques tested in other modern Continental codes. The 1940 Code was scheduled to become effective July 1, 1941. At that time, however, Greece had been overrun by the Axis forces. After the liberation of the country, a new committee was appointed to make a final revision of the Code, and a revised version was put into effect in 1945. Subsequently, this revision was repealed and the original 1940 Code was given the force of law retroactively from February 23, 1946. By the Introductory Law of the Civil Code, all local preexisting codes and customs were abrogated. The Civil Code, along with other legislation, was introduced in the Dodecanese Islands after their liberation in 1948. A concerted effort has been made for the revision of civil, commercial, and procedural laws in light of the constitutional mandate for equality of sexes. Accordingly, provisions of the Civil Code in the fields of conflicts of laws, procedure, property, obligations, successions, and, especially, family law were amended by Law 1329/1983 to ensure equality between men and women and safeguard the interests of children (see Ch. 9, Section I). In 1984, the provisions of the Civil Code were recast into demotic Greek language. In the last few years, Greek law has been substantially influenced by the developing law at the European Union level. Greece has generally complied with

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Community law (see Ch. 4) and has opted toward uniformity of law either by voluntary action or in compliance with obligations undertaken by international conventions. BIBLIOGRAPHY A.

ON ANCIENT GREEK LAW

I. Apostolakis, Justice in Mycenaean Times (Athens-Komotini, 1990) [in Greek]. L. Beauchet, Histoire du droit privé de la République Athénienne, vols I–IV (Paris, 1897). A. Biscardi, Dirittto Greco Antico (Milano, 1982); translated in Greek by P. Dimakis (Athens, 1991). R.J. Bonner, Lawyers and Litigants in Ancient Athens (Chicago, 1927). R.J. Bonner and G. Smith, The Administration of Justice from Homer to Aristotle, vols I, II (Chicago, 1930). G.M. Calhoun, The Growth of Criminal Law in Ancient Greece (Berkeley, 1927). G.M. Calhoun, Introduction to Greek Legal Science (Oxford, 1944). R. Dareste, B. Hassoullier and T. Reinach, Recueil des inscriptions juridiques grecques (Paris, 1898–1904). S.I. Delikostopoulos, Genesis of Law and the Poetry of Ancient Greece (AthensKomotini, 1996) [in Greek]. M. Hamburger, The Awakening of Western Legal Thought (London, 1942; reprinted Westport, Conn., 1970). A.R.W. Harrison, The Law of Athens, vols I (Oxford, 1968), II (Oxford, 1971; reprinted 1998). E. Havelock, The Greek Concept of Justice (Cambridge, 1978). J.W. Jones, The Law and Legal Theory of the Greeks (Oxford, 1956). J.H. Lipsius, Das attische Recht und Rechtsverfahren (Leipzig, 1905–1915). C.E. Maravelis, Murder. The Attica Murder Trial Courts (Piraeus, 1998) [in Greek]. U.E. Paoli, Studi di Diritto Attico (Firenze, 1930). J. de Romilly, La loi dans la pensée grecque (2nd edn, Paris, 2002). M. Tourtoglou, Studies on Greek Law History, vols I–III (Athens, 1993) [in Greek]. S. Troianos and I.P. Velissaropoulou-Karakosta, History of Law (3d edn, Athens, 2002) [in Greek]. A. Verdross, Grundlinien der antiken Rechts- und Staatsphilosophie (Wien, 1948). P. Vinogradoff, Outlines of Historical Jurisprudence, vol. II (London, 1922). E. Wolf, Griechisches Rechtsdenken, vols I–III (Frankfurt am Mein, 1950– 1970).

12 B.

Athanassios N. Yiannopoulos ON HELLENISTIC, ROMAN, BYZANTINE AND POST-BYZANTINE LAW

D.G. Apostololpoulos, Reliefs of a Legal Art. Byzantine Law and Post-Byzantine Legislation (Athens, 1999) [in Greek]. A.H.M. Jones, The Greek City From Alexander to Justinian (Oxford, 1940). K.E. Zachariae von Lingenthal, Geschichte des griechisch-romischen Rechts (3rd edn, Berlin, 1892; reprinted Aalen in Würtenberg, 1955). L. Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreiches (Leipzig, 1891). J.A.B. Mortreuil, Histoire du droit byzantin, vols I–III (Paris, 1843–1846). E. Seidl, Ptolemäische Rechtsgeschichte (2nd edn, New York, 1962). R. Taubenschlag, The Law of Greco-roman Egypt in the Light of the Papyri, 332 BC–640 AD, (2nd edn, Warszawa, 1955). P. Zepos, Greek Law: Three Lectures Delivered at Cambridge and Oxford in 1946 (Athens, 1949). C.

ON THE HISTORY OF THE LAW OF THE MODERN GREEK STATE (in Greek unless otherwise indicated)

N. Pantazopoulos, Georg Ludwig von Maurer: The Total Influence of European Prototypes on Greek Legislation (Thessaloniki, 1968). N. Pantazopoulos, The Law Adopted by the Greek Revolution of 1821 and the Greek Jurists (2nd edn, Thessaloniki, 1972). N. Pantazopoulos, History of Greek Law, vol. I: Historical Introduction to the Sources of Greek Law, vol. II: From the Formal Tradition to the Civil Code (Thessaloniki, 1973). Pantazopoulos’ studies have been republished in four volumes by the University of Thessaloniki Law School (Thessaloniki, 1986). G. Plagianakos, Die Entstehung des griechischen Zivilgesetzbuches (Hamburg, 1963).

Chapter 2

Sources and Materials Anastasia Grammaticaki-Alexiou*

The formal statement as to the sources of law is contained in Article 1 of the Civil Code, which defines them as being legislation and custom. This statement seems to rather oversimplify the actual situation. It does not take account some other sources of law, which may have no formal value, but are nonetheless quite influential. Such sources are judicial decisions and legal writing. The Greek judge or lawyer, in deciding a case or advising a client, will not only take into consideration the existing legislative provisions, or, if the case may be, customs, but also these ‘informal’ sources of law. I.

LEGISLATION

The Greek legal system, like the other legal systems of the Romano-Germanic family of law, is permeated by the idea that the mission of law is accomplished best by reliance upon enacted law. Although Article 1 CC does not give any priority to legislation, the latter is by far the most important source of law. This tendency seems to be in agreement with democratic principles as well as with the broadening role of the State in all sectors of social life. It also obeys the principle of separation of powers: the legislature is exclusively responsible for the *

Professor of Law, University of Thessaloniki.

Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 13–21. © 2008, Kluwer Law International BV, The Netherlands.

14

Anastasia Grammaticaki-Alexiou

law-making process. Besides, it appears as the answer to the exigency of clarity, precision, and certainty required by the contemporary complex of social relations. According to the Constitution, Parliament and the President of the Republic exercise the legislative powers. The executive may enact legal rules only on the basis of formal statutory delegation (see Ch. 3, Section II B 3). The provisions of law emanating from the legislative process exist in the form of hierarchy. At the top of this hierarchy stands the Constitution, and its provisions take precedence over all other laws. Next comes ordinary legislation, either in the form of codifications or in the form of statutes. Statutes are either substantive or formal, depending on whether one examines their content or their form. On the one hand, for example, the budget appears in the form of a statute but it does not contain legal rules. It is therefore a formal, but not a substantive statute. On the other hand, substantive statutes emanate not only from Parliament but from other authorities as well, especially from the President of the Republic in the form of decrees and from cabinet ministers in the form of decisions taken by virtue of authorization by Parliament. Only substantive statutes, i.e. those containing legal rules, may constitute sources of law, and only their violation is subject to review by Areios Pagos on final appeal (cassation; see Ch. 16, Section VIII E). Enacted law obeys certain basic principles. Its rules have no retroactive effect unless otherwise provided by the legislator. They may be repealed by a posterior rule of law of the same or higher rank but never by a rule of lesser rank. The repeal may be explicit or implicit. A statute cannot repeal provisions of the Constitution, and those of a statute cannot be repealed by presidential decree. A law contrary to the Constitution is invalid and the courts are required not to apply it (see Ch. 3, Section VI C). Specific provisions or statutes prevail over general ones. Based on the idea that there is one sphere of relations between those who govern and another one among private individuals, Greek law is divided into public and private. Some laws of ordinary legislation, of either public or private nature, appear in the form of codes, i.e. comprehensive compilations gathering and systematically organizing the regulation of special subjects. The most important codifications in Greek law are the following: the Civil Code, the Law on Commerce, the Penal Code, the Code of Civil Procedure, the Code of Criminal Procedure, the Code of Administrative Procedure, the Code of Administrative Court Procedure, the Code of Private Maritime Law, the Code of Public Maritime Law, and the Military Penal Code. More specific subjects are treated in other codifications, such as the Code on Civil Servants, the Code of Greek Nationality, the Agricultural Code, the Forest Code, the Code on Customs, the Code on Stamp Tax, the Code of Compulsory Expropriations, the Code on Attorneys, and the Code on Notaries. The Constitution declares in Article 28 that the ‘generally accepted’ rules of international law as well as international treaties ratified by Greece are an integral part of Greek law, and that they prevail over any contrary statutory provision. Evidently, the generally accepted rules of international law constitute a direct source of internal law, while the international treaties are an indirect one, since they become part of the Greek legal system only after ratification.

Sources and Materials

15

As a result of the Greek accession to the European Communities, Community legislation has become part of the legal system (see Ch. 4). Beside the rules of primary sources of Community law (treaties, annexes, and protocols), which prevail over internal law, the constantly increasing body of secondary Community legislation has a direct impact on Greek citizens. Regulations, the form of legislation directly applicable in Member States and, consequently, in Greece, have brought uniformity among the legal systems of the EU Member States in several legal areas. II.

CUSTOM

Although custom is far from having the primordial importance of enacted law, Article 1 CC places it on the same level with legislation, by naming it a source of law. This attitude has been probably influenced by the idea that custom is an infrastructure upon which the law is built, and is created directly by society without the formalities required for the promulgation and enactment of legislation. Notwithstanding the apparent equality of custom and enacted law, the actual situation is somewhat different: custom may be considered a primary source of law but, according to Article 2 II of the Law Decree of 7/10 May 1946, it cannot abolish statutory law. Thus, the role of the custom adversus legem is not accepted. The role of the custom secundum legem is potentially considerable, because it can help in the clarification of the legislator’s ideas. Codifications and de facto primacy of legislation do not leave much space for the role of custom praeter legem. III.

JUDICIAL DECISIONS

The creative role of judicial decisions is usually hidden behind the veil of ‘interpretation’ of legislation. It is not formally admitted that judges may create rules of law; on the contrary, it is stressed that the task of law-making belongs to the legislator and to the governmental or administrative authorities that supplement his work by delegation. Consequently, unlike what happens in the Anglo-American system, judicial decisions are not considered a source of law, and judicial precedent does not bind the courts. The non-binding character of judicial precedent does not imply that the courts frequently deviate from their prior practice manifested in a string of decisions. Lower courts, although not technically bound by the decisions of higher courts, usually conform thereto (see Ch. 16, Sections II D in f., VIII E in f.). In this respect, judicial precedents, especially those of Areios Pagos, play an important role, and may also create customary law. Furthermore, when a statute uses general concepts, such as ‘important cause’ or ‘inadequately large’, or incorporates general clauses, such as ‘morality’ and ‘good faith’, which must be interpreted in order to fit an individual case, the judge is necessarily invited to fill the gaps of the legislation.

16

Anastasia Grammaticaki-Alexiou

It must also be noted that jurisprudence intervenes to law-making in an indirect manner, when courts refuse to apply a law they consider unconstitutional. IV.

WORKS OF LEGAL SCHOLARS

Doctrine does not constitute a source of law in the formal sense, but a realistic approach brings forward its great importance in the creation and application of laws. It shapes the ideas that influence the legislator and establishes the methods by which legal rules will be interpreted. When a judge is formulating his opinion, he usually needs the support of doctrine. Court decisions often cite the names of legal scholars whose opinions have been taken into consideration. Doctrine appears in the form of commentaries, treatises, manuals, monographs, or articles and comments on judicial decisions published in legal periodicals. V.

MATERIALS

A. Statutory law must first be published in the Government Gazette (Eφημερίδα της Κυβερνήσεως, Efimerida tis Kyverniseos, GG; ). It is also published in various private collections appearing on a monthly or yearly basis. The best-known private collections of legislation are the following: – Code of the Law Tribune (Κώδικας Νομικού Βήματος, Kodikas Nomikou Vimatos); – Permanent Code of Legislation (Διαρκής Κώδικας Νομοθεσίας-Ραπτάρχης, Diarkis Kodikas Nomothesias-Raptarchis); – Bulletin of Legislation and Cases Relating to Automobiles (Δελτίο Αυτοκινητικής Noμoθεσίας και Noμoλoγίας, Deltio Autokinitikis Nomothesias kai Nomologias); – Bulletin of Labor Legislation (Δελτίον Εργατικής Νομοθεσίας, Deltion Ergatikis Nomothesias); – Pandect of Penal Law (Πανδέκτης Ποινικού Δικαίoυ, Pandektis Poinikou Dikaiou); – Bulletin of Legislation and Cases Relating to Construction (Δελτίον Δομικής Νομοθεσίας και Νoμoλoγίας, Deltion Domikis Nomothesias kai Nomologias); – Construction Update (Δομική Ενημέρωσις, Domiki Enimerosis); – Code of Urban Planning Legislation (Kώδικας Πολεοδομικής Νομοθεσίας, Kodikas Poleodomikis Nomothesias); – Code of Tax Legislation and Cases (Kώδιξ Φορολογικής Νομοθεσίας και Νομολογίας, Kodix Forologikis Nomothesias kai Nomologias); – Code of Income Taxation, Turnover Taxes and Stamp Duties (Kώδιξ Фoρoλoγίας Εισοδήματος, Κύκλου Εργασιών, Τελών Χαρτοσήμου, Kodix Forologias Eisodimatos, Kyklou Ergasion, Telon Chartosimou);

Sources and Materials

17

– Permanent Commentary on the Code of Labor Legislation (Διαρκής Ερμηνευτικός Kώδιξ Εργατικής Noμoθεσίας, Diarkis Ermineutikos Kodix Ergatikis Nomothesias); and – Code of Review of Labor Law (Kώδικας Επιθεωρήσεως Εργατικού Δικαίoυ, Kodikas Epitheoriseos Ergatikou Dikaiou). As is apparent from the respective titles, some of these collections include cases as well. Statutes are published therein either in chronological order or arranged by subject matter. Formal statutes and delegated legislation are usually mixed up with no separate parts of the publication devoted to each category. The most frequent use is made of the Code of the Law Tribune, which is published by the Athens Bar. B. There are no official collections or reports of judicial decisions in Greece, with the exception of the Council of State, which used to publish every year several volumes containing its opinions of the year in full and is now publishing, albeit with a certain delay, extensive indexes with substantial syllabi. A collection of all decisions of Areios Pagos (full bench) from 1967 to 2005 has recently appeared. There is also a collection of all criminal decisions of Areios Pagos for the year 2005. Civil-law legal periodicals publish a large number of decisions of all courts in all branches of law. Some periodicals specialize in certain subjects only. Cases are cited by the name of the court, their number, and the year; numbering starts afresh every year for every court. Most legal periodicals publish the names of the judges, usually of the presiding judge and the juge rapporteur, and of the attorneys – but not of the parties – as well as a brief summary of the decision. Legal periodicals are refereed – not edited – by law students, or published by law schools. The best known ones, published in Greek unless otherwise indicated, are the following: – – – – – – – – – – – –

Achaean Cases (Αχαϊκή Noμoλoγία, Achaiki Nomologia); Administrative Justice (Διοικητική Δικαιοσύνη, Dioikitiki Dikaiosyni); Administrative Trial (Διοικητική Δίκη, Dioikitiki Diki); Applications of Public Law (Εφαρμογές Δημoσίoυ Δικαίoυ, Efarmoges Dimosiou Dikaiou); Archive of Cases (Аρχείo Noμoλoγίας, Archeio Nomologias); Bulletin of Corporations and Close Corporations (Δελτίoν Συνδέσμου Ανωνύμων Εταιριών και Εταιριών Περιωρισμένης Ευθύνης, Deltion Syndesmou Anonimon Etairion kai Etairion Periorismenis Euthinis); Bulletin of Tax Legislation (Δελτίo Φορολογικής Νομοθεσίας, Deltio Forologikis Nomothesias); Chronicles of Private Law (Χρονικά Ιδιωτικού Δικαίoυ, Chronika Idiotikou Dikaiou); Counsel for the Defense (Συνήγορος, Synigoros); Criminal Chronicles (Ποινικά Χρονικά, Poinika Chronika); Criminal Discourse (Ποινικός Λόγος, Poinikos Logos); Criminal Justice (Ποινική Δικαιοσύνη, Poiniki Dikaiosyni);

18

Anastasia Grammaticaki-Alexiou – Critical Review of Legal Theory and Practice (Κριτική Eπιθεώρηση Νομικής Θεωρίας και Πράξης, Kritiki Epitheorisi Nomikis Theorias kai Praxis); – De Lege; – Digesta; – Dodecanesian Jurisprudence (Δωδεκανησιακή Νομολογία, Dodekanisiaki Nomologia); – Environment and Law (Περιβάλλον και Δίκαιo, Perivallon kai Dikaio); – Harmenopoulos (Аρμενόπoυλoς); – Hellenic Justice (Ελληνική Δικαιοσύνη, Helliniki Dikaiosyni); – Hellenic Review of European Law (Ελληνική Eπιθεώρηση Ευρωπαϊκού Δικαίου, Helliniki Epitheorisi Europaikou Dikaiou); – Hellenic Review of European Law [in English]; – Hepirotic Justice (Ηπειρωτική Δικαιοσύνη, Hepirotiki Dikaiosyni); – Human Rights (Δικαιώματα του Аνθρώπου, Dikaiomata tou Anthropou); – Ionian Law Review (Ιονική Eπιθεώρηση του Δικαίου, Ioniki Epitheorisi tou Dikaiou); – Isopoliteia (Ισοπολιτεία); – Journal of Administrative Law (Eφημερίδα Διοικητικού Δικαίου, Efimerida Dioikitikou Dikaiou); – Journal of Greek Jurists (Eφημερίς Ελλήνων Nομικών, Efimeris Hellinon Nomikon); – Koinodikion (Kοινοδίκιον) [suspended since 2003]; – Law of Enterprises and Companies (Δίκαιο Επιχειρήσεων και Εταιριών, Dikaio Epihiriseon kai Etairion); – Law of Mass Media and Communication (Δίκαιο Μέσων Ενημέρωσης και Eπικοινωνίας, Dikaio Meson Enimerosis kai Epikinonias); – Law Tribune (Νομικό Βήμα, Nomiko Vima); – Maritime Justice (Ναυτική Δικαιοσύνη, Nautiki Dikaiosyni); – New Law Review (Νέα Νομική Eπιθεώρηση, Nea Nomiki Epitheorisi); – Notarial Review (Συμβολαιογραφική Eπιθεώρηση, Symvolaiografiki Epitheorisi); – Piraeus Cases (Πειραϊκή Νομολογία, Peiraiki Nomologia); – Review of Administrative Science (Eπιθεώρηση Διοικητικής Επιστήμης, Epitheorisi Dioikitikis Epistimis); – Review of Commercial Law (Eπιθεώρησις του Εμπορικού Δικαίου, Epitheorisis tou Emporikou Dikaiou); – Review of Labor Law (Eπιθεώρησις Εργατικού Δικαίου, Epitheorisis Ergatikou Dikaiou); – Review of Maritime Law (Eπιθεώρηση Ναυτιλιακού Δικαίου, Epitheorisi Nautiliakou Dikaiou); – Review of Multi-unit Building Law (Eπιθεώρηση Δικαίου Πολυκατοικίας, Epitheorisi Dikaiou Polykatoikias);

Sources and Materials

19

– Review of Private Insurance Law (Επιθεώρηση Δικαίου Ιδιωτικής Аσφαλίσεως, Epitheorisi Dikaiou Idiotikis Asfaliseos); – Review of Public Law and Administrative Law (Eπιθεώρηση Δημοσίου Δικαίου και Διοικητικού Δικαίου, Epitheorisi Dimosiou Dikaiou kai Dioikitikou Dikaiou); – Review of Public Works (Eπιθεώρηση Δημοσίων 'Eργων, Epitheorisi Dimosion Ergon); – Review of Social Insurance and Labor Law (Eπιθεώρησις Ασφαλιστικού και Εργατικού Δικαίου, Epitheorisis Asfalistikou kai Ergatikou Dikaiou); – Review of Social Security Law (Eπιθεώρησις Δικαίου Κοινωνικής Аσφαλίσεως, Epitheorisis Dikaiou Koinonikis Asfaliseos); – Review of Transport Law (Eπιθεώρησις Συγκοινωνιακού Δικαίου, Epitheorisis Synkoinoniakou Dikaiou); – Revue hellénique de droit international, published by the Hellenic Institute of International and Foreign Law only in foreign languages (French, English, German); – Survey of Commercial Law (Eπισκόπηση Εμπορικού Δικαίου, Episkopisi Emporikou Dikaiou); – The Constitution (To Σύνταγμα, To Syntagma); and – Trial (Δίκη, Dike). In addition, summaries of most reported cases appear annually in bound volumes published by H. Caratzas, P. Sakkoulas and I. Zacharopoulos, respectively. C. A compilation of all decisions of Areios Pagos in civil matters covering the period 1967–1982 was published by the Athens Bar in Basic Cases (Βασική Nομολογία, Vasiki Nomologia, vols I–VII, 1983–1984), with a Supplement covering the period 1983–1986 and 1987 in part (vols I–II, 1987). As far as commentaries are concerned, the most important one is the Interpretation of the Civil Code (Eρμηνεία του Αστικού Kώδικος-EρμАK), which has not been completed. A more modern commentary is A. Georgiadis and M. Stathopoulos, Civil Code (Αστικός Κώδιξ, Astikos Kodix) in several re-edited volumes (Athens, 1978–2003). Mention should also be made to V. Vathrakokoilis, Analytic Interpretation-Cases under the Civil Code, vols I–II (3rd edn, Athens, 1989). During the last few years, electronic databases are available as well. The most comprehensive one is NOMOS () containing legislation, jurisprudence, references to articles in major legal periodicals and other useful legal information. The Athens Bar Association has also its own database () with similar content. There are also three legal information websites, namely Lawnet (), Lawyers Online () and Greek Lawyers Index (). For access to all of these a subscription/password is required. Greek legal bibliography is quite rich. However, legal scholars who do not know the Greek language can hardly have access to it.

20

Anastasia Grammaticaki-Alexiou

D. There is no comprehensive or survey work on contemporary Greek law and very little writing of any kind in English. Professor P. Zepos’ Greek Law: Three Lectures delivered at Cambridge and Oxford in 1946 (Athens, 1949) contains a presentation of Greek law and tradition and of the Civil Code as well as a basic bibliography. See also P. Zepos, ‘The Greek Legal System’, RHDI 14 (1961) 1–13. The Civil Code was translated into English with some degree of success and published by C. Taliadoros (Athens-Komotini, 2000) and An Outline of the Greek Civil Law was published by A. Iatrou (Athens, 1986). There exist two good translations of the original text of the Civil Code into French by P. Mamopoulos (3rd edn, updated by Mitsa Tsitseklis-Souriadakis, Athens-Komotini, 2000) and into German by D. Gogos (Berlin-Tübingen, 1951); see also G. Mantzoufas, Über griechisches Privatrecht (Athens, 1956), which contains a series of lectures on Greek civil law. A translation of the original text of the Code of Civil Procedure into German was published by G. Baumgärtel and G. Rammos (Cologne, Berlin, Bonn, 1969). A two-volume Greek-English and English-Greek Dictionary of Legal Terms (Athens, 1970), compiled by G. Perris, is sometimes helpful but should be used with caution because of omissions and inaccuracies. More recent attempts are from H. Caratzas and H. Zombola, English-Greek and Greek-English Dictionary of Law Terms (Athens, 2003), M. Chiotakis, English-Greek Dictionary of Legal and Commercial Terms (Athens, 1992), and A. Kaissis, German-Greek Dictionary of Legal Terminology, vols I (Thessaloniki, 1995) and II (AthensThessaloniki, 2002). The Dictionary of English-Greek and Greek-English Commercial, Banking and Financial Terms of I. Chryssovitsiotis and I. Stavrakopoulos (5th edn, Athens, 2002) contains many legal terms. The chapter on Greece in the International Encyclopedia of Comparative Law (1978), originally by Professor Ch. Fragistas, is brief but excellent, and its bibliography is extensive. The chapter on the ‘Legal System of Greece’ by I. Vekris in the Modern Legal Systems Encyclopedia (1985), contains some useful current information on the Greek system of government. Also very useful is the chapter titled ‘Introduction to Greek Law’ by D. Christodoulou in Doing Business in Greece, Part II, Chapter 10 (1996), looseleaf. The ‘Greece’ Law Digest in Martindale and Hubbell (1992), compressed into a dictionary of terms, is carefully written but elliptical and can be misleading. Reference should finally be made to K.D. Kerameus, ‘Grecia’ in Digesto delle Discipline Privatische, Sezione Civile, vol. IX (4th edn, Turin, 1993). BASIC BIBLIOGRAPHY A.

IN GREEK

I. Aravantinos, Introduction to Legal Science (2nd edn, Athens, 1983). G. Balis, General Principles of Civil Law (8th edn, Athens, 1961). A. Georgiadis, General Principles of Civil Law (3rd edn, Athens-Komotini, 2002).

Sources and Materials

21

A. Georgiadis and M. Stathopoulos (eds), Civil Code, Article-by-Article Commentary vol. I: General Principles (Athens, 1978). I. Karymbali-Tsiptsiou, ‘Sources of Statutory Law’, Epistimoniki Epetirida Harmenopoulou, 1 (1980) 227–238. A. Papachristou, General Principles of Civil Law (Athens, 1987). N. Papantoniou, General Principles of Civil Law (3rd edn, Athens, 1983). D. Papasteriou, General Principles of Civil Law (Thessaloniki, 1994). K. Simantiras, General Principles of Civil Law (4th edn, Athens-Komotini, 1988). J. Spyridakis, General Principles (Athens-Komotini, 1987). G. Tambakis, Statute and Custom in the Civil Code, EEN 42 (1975) 653–666. A. Toussis, General Principles of Civil Law, vol. I (2nd edn, Athens, 1978). K. Tsatsos, The Problem of the Sources of Law (2nd edn, Athens-Komotini, 1993). B.

IN OTHER LANGUAGES

P. Agallopoulou, Basic Concepts of Greek Civil Law (translated into English by Y. Kotsovolou-Masry, Athens-Komotini, 2005). C. Fragistas, ‘Contribution à l’ étude de la technique du Code Civil grec’, RHDI 4 (1951) 40–63. A. Grammaticaki-Alexiou, ‘Mixed Jurisdictions’, RHDI 38–39 (1985–1986) 315–321. K.D. Kerameus and K. Kremlis, ‘The Application of Community Law in Greece, 1981–1987’, CMLR 25 (1988) 141–175. A. Ligeropoulos, ‘Les réactions de la doctrine à la création du droit par les juges en droit civil’, in Travaux de l’Association Henri Capitant, 31 (1980) (Paris, 1982) 105–116 (see also RHDI 33 (1980) 121–136). G. Michaelides-Nouaros, ‘L’ oeuvre créatrice de la jurisprudence grecque en cas de silence de la loi’, RHDI 4 (1951) 163–180.

Chapter 3

Constitutional and Administrative Law Prodromos D. Dagtoglou*

I.

THE CONSTITUTION

A.

THE NEW CONSTITUTION

The present Constitution (Σύνταγμα, Syntagma) of Greece was adopted by a specially-empowered Parliament on June 7, 1975, within a year after the fall of a seven-year military dictatorship (1967–1974). The Constitution of 1975, which replaced the Constitution of 1952, contains a mixture of traditional and more modern provisions based in part on the experience of the dictatorship. Despite its many defects, such as repetitiveness, excessive and uneven detail, and lack of precision, which were increased especially by the 2001 amendment, this Constitution is nevertheless an improvement compared to its predecessor. It stands closer to the daily realities of politics and administration, guarantees a more complete judicial protection of the individual, and provides for a more effective and efficient functioning of government.

*

Professor (emer.), University of Athens. For his contribution to the preparation of the third edition updating I am very much indebted to Thanos Tsevas, Lecturer at the University of Athens.

Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 23–64. © 2008, Kluwer Law International BV, The Netherlands.

24 B.

Prodromos D. Dagtoglou AMENDMENTS

The Constitution is ‘rigid’ in the sense that, first, it may not be amended within the term of one Parliament and through the ordinary legislative procedure; and second, certain constitutional provisions may not be amended at all. These provisions pertain to the form of government as a ‘republican, parliamentary democracy’, the sovereignty of the people, the respect for human dignity, the principle of equality, the free access to public offices, the prohibition of titles of nobility, the free development of personality, personal freedom, freedom of religion, and separation of powers. All other provisions may be amended through a two-phase procedure. Parliament states first the need for amendment and specifies the provisions to be amended in two resolutions taken by a three-fifths majority (180) of the total number of the members of Parliament (300) in two ballots held at least one month apart. The next Parliament decides on the amendments, during its first session, by an absolute majority (151) of the total number of its members (Art. 110 Const.). This procedure is considerably simpler than that of previous constitutions, which was never observed. After winning parliamentary elections in the 1980s and 1990s, the Panhellenic Socialist Movement (PASOK) carried out, in 1986 and 2001, two amendments of the Constitution, against which it had voted in 1974. The first amendment was completed on 6 March 1986,1 and consisted mainly of transferring most of the President’s powers to the Government and, effectively, to the Prime Minister. The second amendment of the Constitution was completed on 6 April 2001. It was very extensive (almost doubling the Constitution in size), replacing or amending 49 out of the 119 Articles of the Constitution.2 It also introduced four new Articles (5A, 9A, 100A, and 101A). It concerned some human rights, but mainly introduced several social claims (‘social rights’), and it affected political parties, political activities of public servants, the appointment of a new Prime Minister in case of the disability of the incumbent Prime Minister to discharge his office, parliamentary elections, ineligibilities and incompatibilities, organization and working of Parliament, tax and fiscal administration, criminal liability of ministers and vice-ministers, the status of judges, jurisdiction of courts, independent authorities, local government, and public servants. The quality of the amendment was, however, in direct disproportion to its extent. In fact, it downgraded the supreme law of the country regarding both its content and drafting, and the way it was negotiated between the parties. It has probably been the worst amendment in Greece’s constitutional history. A third amendment is now being prepared by the new government after the New Democracy party won the 2004 parliamentary elections. The Government proposes an extensive amendment of the Constitution, which would affect a wide 1. It affected, totally or partly, Articles 32, 35, 37, 38, 39, 41, 42, 43, 44, 47 and 48 Const. 2. Namely, Articles 4, 5, 6, 7, 10, 12, 14, 15, 17, 19, 21, 22, 24, 25, 28, 29, 31, 38, 51, 54, 56, 57, 66, 68, 70, 72, 74, 76, 79, 80, 82, 86, 88, 89, 90, 92, 93, 94, 95, 98, 100, 101, 102, 103, 108, 109, 115, 116 and 118 Const.

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variety of subjects: rules on media ownership, status of university level institutions, protection of property, protection of forests, financing of political parties, the number of members of Parliament elected not by local constituencies but by the whole country, parliamentary ineligibilities and incompatibilities, parliamentary immunity, appointment of the heads of the supreme courts, status of civil servants and the employment in the public sector, review of legality of public contracts, and the status and powers of the Supreme Special Court. C.

EMERGENCY LAW

In case of emergency, the Government may propose to Parliament, or, if Parliament cannot be convened in time, to the President of the Republic, to suspend temporarily a number of constitutional provisions (Art. 48 Const.; see below, Section II B 1). Prior to the 1986 amendment, this power belonged to the President alone. Only the Cabinet’s or the Prime Minister’s countersignature was required. D.

CONSTITUTION AND INTERNATIONAL LAW

The Constitution is particularly open towards international law. Article 2 II Const. proclaims that ‘Greece, adhering to the generally acknowledged rules of international law, pursues the strengthening of peace and justice and the development of friendly relations between peoples and states.’ More importantly, Article 28 I Const. provides that [t]he generally accepted rules of international law, as well as international treaties, as from their ratification by statute and from their coming into force under the conditions of each of them, shall constitute an integral part of domestic Greek law and shall prevail over any contrary statutory provision. The rules of international law and international treaties shall be applied to aliens only on the condition of reciprocity. Thus, in the hierarchy of Greek legal rules, the ‘generally accepted rules of international law’ and international treaties ratified by Greece, rank between the Constitution and acts of parliament. E.

CONSTITUTION AND THE EUROPEAN UNION – THE ACCESSION OF GREECE AND ITS PARTICIPATION IN EUROPEAN INTEGRATION

The Constitution takes an even more important step. On certain formal and substantive conditions, it is possible: (a) to accept that powers under the Constitution will be exercised by institutions of international organizations (Art. 28 II), and (b) to restrict the exercise of national sovereignty (Art. 28 III). In this way,

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Greece’s accession to, and membership in the European Communities (European Union) has been made constitutionally possible (see Ch. 4, Section I). The 2001 amendment added an unnecessary ‘interpretative clause’ to Art. 28. The Treaty of Accession of Greece was signed on 28 May 1979, and ratified on 29 June 1979 by the Greek Parliament with a majority of 193 votes (without the votes of the Panhellenic Socialist Movement – PASOK – and of the Communist Party of Greece) out of 300 (Law 945/1979). Greece became a member of the three European Communities on 1 January 1981. Article 28 of the Constitution also provides the basis for the subsequent participation of Greece in European integration, i.e. the Single European Act (1986, 1987) ratified by Law 1681/1987 (GG A 10); the Treaty on the European Union (1992) ratified by Law 2077/1992 (GG A 136); the Treaty of Amsterdam (1999) ratified by Law 2691/1999 (GG A 671); and the Treaty of Nice (2001, 2002) ratified by Law 3001/2002 (GG A 73; on the above instruments and their significance see further Ch. 4, Section I and ftn. 1). Parliament has also ratified the treaties of accession of new Member States (Law 1572/1985, GG A 193; Law 2272/1994, GG A 230; Law 3236/2004, GG A 60; and Law 3417/2005, GG A 286). Parliament has ratified (Law 3341/2005, GG A 115) the Treaty establishing a Constitution for Europe (2004), but this Treaty has not entered into force because it was rejected by the referendums in France and the Netherlands in 2005, while other Member States postponed indefinitely its ratification. II.

STRUCTURE AND DISTRIBUTION OF STATE POWERS

A.

SYSTEM OF GOVERNMENT

The Constitution provides that Greece is a ‘presidential parliamentary democracy’ (Art. 1 I). More particularly: 1. Greece is a republic (Art. 1 I Const.). The monarchy had already been abolished by referendum on 8 December 1974. The Constitution declares that Greece is a ‘presidential democracy’ and bars the restoration of monarchy (Art. 110 I). As the word ‘republic’ is unknown in the Greek language, and the Greek word ‘democracy’ (δημοκρατία = the people’s power) means both ‘democracy’ and ‘republic’, the Constitution refers to ‘presidential democracy’ in the sense of ‘republican democracy’ and in contrast to the ‘crowned democracy’ of the previous Constitution of 1952 (Art. 21 I). 2. Greece is a democracy (Art. 1 I Const.). Its system of government is based on popular sovereignty (Art. 1 II Const.), equality (Arts 4 and 22 I Const.), personal and political freedom (Arts 4 et seq. Const.), free political parties (Art. 29 Const.) and therefore a multi-party system, free and regular parliamentary and local government elections (Arts 51 and 102 II Const.), separation of powers (Art. 26 Const.), an independent judiciary (Art. 87 Const.), and a Government accountable both to Parliament (Arts 84–86 Const.) and to the courts (Arts 20 I, 95 Const.).

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3. Greece is a representative democracy (Art. 51 II Const.). No state power is directly exercised by the people themselves, but through elected and freely acting representatives (Arts 51 and 61 I Const.) or by the officials they select, mainly the President of the Republic, or approve, mainly the Government. By way of exception, the President of the Republic may order by decree a referendum on ‘crucial national issues’ following decision by an absolute majority of the total number of deputies, taken upon proposal by the Council of Ministers, or on bills about ‘serious social but not financial issues,’ following decision by a three-fifth majority of the total number of deputies, taken upon proposal of two-fifth of the total number of deputies (Art. 44 II Const.; see also Law 350/1976). 4. Greece is a parliamentary democracy (Art. 1 I Const.). The parliamentary system was expressly introduced in Greece through the speech from the throne on 11 August 1875, although it was constitutionally proclaimed for the first time in the 1927 Constitution (Art. 89). The current Constitution provides: (a) for the appointment as Prime Minister of the leader of the majority party in Parliament, or, if there is no majority party, of the leader of a party which can form a government enjoying Parliament’s confidence (Art. 37); (b) for the dependence of Government on Parliament’s vote of confidence (Arts 37, 38, 84); (c) for parliamentary control (Art. 70 VI); and (d) for the right or duty of the President to dissolve Parliament (Arts 32 IV, 37, 38, 41; see below, Section III A 5). In practice, Parliament’s position was weakened considerably after the 1982 abolition of the voter’s right to choose individual parliamentary candidates from the list submitted by each party. This right was however reinstated by Law 1847/1989 (see below, Section III A 1). Before the 1986 amendment, the President could dismiss the Government without a parliamentary vote of censure, and could dissolve Parliament without the Government’s proposal. He also had extensive emergency powers, although none of them had ever been used. It can be reasonably argued that the original text of the Constitution presented a considerable aberration from the classical parliamentary system in favor of the President. However, the amended Constitution (see below, Section II B 2) weakens not only the President, but also Parliament by creating a very strong Government under a particularly powerful Prime Minister. 5. Greece is a state under the rule of law (κράτος δικαίου, kratos dikaiou, literally: ‘state of law’ from the German term Rechtsstaat). The Constitution protects the dignity of the person (Art. 2 I) and entrenches human rights (Arts 4–25). It also provides for the separation of powers and the rule of law over state powers, in particular the prevalence of the Constitution over Parliament; authorizes limited judicial review of acts of Parliament; subjects public administration to the rule of law and judicial review; and guarantees the independence of the judiciary and the citizen’s access to the courts (Arts 20 I, 26, 49, 50, 87–100). The 2001 amendment explicitly proclaimed the principle of the rule of law (Art. 25 I), which, however, had always been unanimously accepted as a constitutional principle.

28

Prodromos D. Dagtoglou 6. Greece is a welfare state (κοινωνικό κράτος, koinoniko kratos; literally: ‘social state’ from the German term Sozialstaat). The present Constitution is more socially oriented than its predecessor. It provides for social restrictions on human rights (Arts 25 III, IV, 17 I, 106 II); protects family, motherhood, childhood and youth, the weak or poor members of society and persons with disabilities; proclaims the right to work; and provides for social security (Arts 21, 22; see Ch. 15). These constitutional provisions allow no discrimination in these areas but grant no claims to individuals in the absence of statutory rights. Like the rule of law, the welfare state principle was unanimously accepted as part of the Constitution prior to the 2001 amendment; consequently its explicit reference in Article 25 I Const. did not bring about any changes to constitutional law in force.

B.

DISTRIBUTION OF STATE POWER

1.

Separation of Powers – Links Between the Legislative and Executive Branches

The Constitution divides state authority into the three traditional powers (‘functions’) and assigns each of them to different state organs (Art. 26). However, this division does not lead to a real segregation (separation) of powers. Only the judiciary is genuinely separated from the other state powers, but even there significant exceptions exist: the presidents and vice-presidents of the three supreme courts (Council of State, Areios Pagos and Court of Audit; see below, under 6), as well as the advocate general of Areios Pagos and the commissioners general of the Court of Audit and the administrative courts, are appointed by the Government, subject to no appeal (Art. 90 V, VI Const.). The 2001 amendment contains several confusing provisions on prohibiting and/or assigning administrative duties to courts and judges (Arts 89, 94 Const.). Between the legislative and executive branches there exist several links. They refer, first, to the parliamentary system, that is the Government’s origin in political parties and Parliament; the Government’s dependence on Parliament’s confidence; parliamentary control over the Government; and the executive’s right to dissolve Parliament. They refer further to the executive’s legislation enacted under authorization by Parliament (delegated legislation; see below, under 3). In urgent cases and in case of emergency, the executive can also legislate without Parliament’s (prior) authorization, but subject to its subsequent approval (Arts 44 I, 48 V Const.). Unless Parliament authorizes their extension, these emergency measures expire, in case of war with its end, and in other cases 15 days after the proclamation of the emergency measures. The links between the legislative and executive branches are particularly discernible in the dual nature of the President of the Republic who shares the legislative function with Parliament and the executive function with the Government (Art. 26 I, II Const.).

Constitutional and Administrative Law 2.

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Shift of the Political Power Center under the 1975 Constitution – The 1986 and 2001 Amendments

Prior to the 1986 amendment of the Constitution, the dual office of the President, manifested in his power to dismiss the Government (Art. 38 II Const.) and to dissolve Parliament (Art. 41 I Const.), and his wide emergency powers (Art. 48 Const.), represented a considerable shift of the political power center from the Government and the Prime Minister towards the President. In practice, however, this shift remained on paper and never actually affected the working of the parliamentary system. Nevertheless, the Socialist Government began in the spring of 1985 and completed in March 1986 the process of amending the Constitution and transferring virtually all presidential powers to the Government and, particularly, to the Prime Minister. At the same time, parliamentary majority remains dependent on its leader’s and Prime Minister’s favor, with the resulting weakness of Parliament. Thus, the old political bicentrism (Parliament – Government) was transformed into a governmental near-monocentrism of power. The 2001 amendment reinforced this development (see above, Section I B). 3.

Legislation

In the main, legislation is assigned to Parliament. Within the limits of the Constitution (especially those drawn by the provisions on human rights), Parliament is subject to no constraints regarding what and how to legislate. Under the Constitution, the legislative power is exercised by Parliament and the President of the Republic. In normal cases, the President’s powers are confined to promulgating and publishing the acts of Parliament. Although he has the considerable power of referring a bill back to Parliament – in which case the bill, in order to survive, must receive the favorable vote of a majority of the total number of its members (Art. 42 Const.) – no President has as yet made use of this power. The President may only issue decrees containing legal rules on the basis of (a) a statutory (specific) delegation which must state its subject, aim and limits, or (b) a (newly introduced) loi-cadre (Arts 43, 78 V Const.). Delegation (νομοθετική εξουσιοδότηση, nomothetiki exousiodotisi) is allowed, except where the Constitution requires a ‘formal law’, that is an act of Parliament, instead of simply a ‘law’ that may also be any statutory instrument (see Ch. 2, Section I). As a rule, such ‘formal laws’ are needed for the imposition of taxes (Art. 78 Const.; see Ch. 19, Section I), but also in many important areas, including the implementation of the Constitution regarding ‘the exercise and protection of individual rights’ where the Constitution requires a law passed by Parliament in pleno, and not by the standing parliamentary committees or the section sitting during the period in which Parliament is in recess (Art. 72 I, II). The prevailing opinion in theory and practice allows delegation in the field of exercise and protection of human rights, and the 2001 amendment did not introduce changes in this respect. The most important form of delegated legislation is the presidential decree (προεδρικό διάταγμα, proedriko diatagma), based on specific statutory delegation

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and issued upon ministerial proposal. Presidential decrees are required to be submitted in draft form to the Council of State that examines their legality and drafting accuracy. Parliament may also delegate legislative power to other organs of the executive, e.g., ministers, but only with regard to matters of ‘a specialized, local, technical, or detailed nature.’ However, ministers (particularly the Minister of Finance) often used to introduce statutory instruments without previous delegation, but with the clause that the instruments concerned ‘shall be ratified by act of Parliament.’ This (retroactive) ratification invariably followed, albeit sometimes many years later. Until 1991, the courts did not object to this obviously unconstitutional practice. However, SE (full bench) 3596/19913 held that ratification is constitutional only ex nunc. In urgent cases, the President’s powers are wider: upon proposal by the Cabinet, he is allowed to issue ‘legislative acts’ without statutory delegation. These acts must be submitted to Parliament’s approval within 40 days of their adoption or of Parliament’s convocation. However, only their future force, not their past application, depends on this approval, even in case they were not submitted to Parliament at all (Art. 44 I Const.). The President has repeatedly used his powers to issue ‘urgent’ decrees, although manifestly no urgent case existed. These decrees are invariably approved by Parliament and any inquiry as to their ‘urgency’ is viewed by the courts as being of ‘political’ nature and, therefore, non-reviewable. Prior to the 1986 amendment, the President had very wide, though temporary, powers in case of emergency (Art. 48 Const.). In case of external or internal dangers, he could issue a decree countersigned by the Council of Ministers or, in some cases, by the Prime Minister, which would suspend certain constitutional provisions, could activate the Emergency Act (Law 566/1977), and set up emergency courts. The President was empowered, under the same conditions, to take ‘all administrative and legislative measures needed to meet the situation and to restore, as soon as possible, the constitutional order.’ This presidential power depended neither on the previous permission nor the subsequent approval of Parliament. However, except for emergency decrees issued in case of war, which might remain in force until the termination of the war, all other such decrees remained in force for only 30 days, unless extended by Parliament. The 1986 amendment assigned the power to declare the state of emergency to Parliament, or, if it cannot be convened, to the President. However, in both cases, the Government’s proposal is needed. In light of the fact that, under the amendment, the Government no longer depends on the President’s confidence (in addition to parliamentary confidence), and that the amendment replaced the Cabinet’s or Prime Minister’s countersignature through the Government’s proposal, the weakening of the President’s position is considerable. The emergency measures now need, however, parliamentary approval within 15 days from their enactment. 3. ToS 18 (1992) 150–152.

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Finance

In public finance, decisive powers are assigned to Parliament. Taxes may be levied only by an act of Parliament, which may not have a retroactive effect beyond the previous fiscal year (see below, Ch. 19, Section I). This act must state the taxable object, the tax rate, and the tax abatements and exemptions. By way of exception, a presidential decree based on a loi-cadre suffices in customs and currency matters, as well as ‘within the framework of the country’s international relations to economic organizations’ (Art. 78 Const.). No salary, pension, subsidy, or remuneration may be entered in the state budget, unless provided for by statute (Arts 80 I, 78 IV Const.). Parliament votes on the annual budget and confirms the financial statement and the general balance sheet of the state (Art. 79 I–VII Const.). Parliament also approves plans on economic and social development (Art. 79 VIII Const.). 5.

Executive

The executive power is exercised by the President of the Republic and the Government. In normal cases, the Government is the main executive organ with every decision of the President requiring the countersignature of the competent minister (Art. 35 I Const.). The powers originally granted to the President by the Constitution, to summon the Cabinet under his chairmanship, to address messages to the nation, or to call a referendum on ‘crucial national issues’, have been abolished or considerably weakened by the 1986 amendment. However, the President may still, without ministerial countersignature, appoint the Prime Minister, dismiss the Government, and dissolve Parliament under certain circumstances (Art. 35 II Const.). For the President’s emergency powers, which are now effectively transferred to the Government, see above under 3. For the central and local governments, ministers, and other authorities, see below, Section IV A–C. 6.

Judiciary

Judicial power is exercised by the courts of law (Arts 26 III, 87 I Const.). Judicial independence (see Ch. 16, Section II D) is the basis for judicial review of constitutionality of laws and of constitutionality and legality of statutory instruments. However, while unlawful and unconstitutional administrative decisions (individual ‘administrative acts’) and statutory instruments may be declared null and void by the administrative courts (Art. 95 Const.; see below, Section V C), unconstitutional acts of Parliament may only be denied application by the courts. Indeed, the courts are bound by the Constitution not to apply laws the contents of which are contrary to the Constitution (Art. 93 IV). Only the Supreme Special Court can annul an act of Parliament on the ground of unconstitutionality (on the judiciary see further Ch. 16 and in particular under Sections II, II A, VIII A, E, IX, X A, XI B and XIII B).

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The law provides in a general manner for the powers of the various courts. No one may be deprived against his will of the judge assigned to him by law, and judicial committees and extraordinary courts (not to be confused with the emergency courts of Art. 48 I Const.) are prohibited (Art. 8 Const.). There are two categories of law courts: administrative on the one hand, and civil and criminal courts on the other (Art. 93 I Const.) The supreme administrative court is the Council of State (Συμβούλιο της Eπικρατείας, Symvoulio tis Epikrateias; SE). It was established in 1928, after the model of the French Conseil d’ Etat (Art. 95 Const.). Except for its advisory function with regard to delegated legislation (see above, Section II B 3), the Council of State is primarily (unlike perhaps its French prototype) a court of law. It is an administrative court of first and last instance with jurisdiction over applications for judicial review (‘petitions for annulment’) of administrative decisions (administrative acts) for violation of law or abuse of discretionary power. Its powers, organization and procedure are determined by the Constitution (Arts 95 and 94 I, as well as other constitutional provisions) and laws, ‘codified’ (consolidated) by Presidential Decree 18/1989, as repeatedly amended. The Council of State is also the supreme court deciding final appeals against judgments of the lower administrative courts (see below, Section V C 2). These courts are of first and of second instance. When the law provides for a full (substantive) judicial review on grounds both of law and equity, this so-called ‘substantive’ administrative dispute is assigned to the ordinary administrative courts of first and, on appeal (but sometimes directly), of second instance (on the jurisdiction of these courts see Art. 94 Const. and a plethora of laws, in particular Laws 702/1977 and 1406/1983, as repeatedly amended). Organization and procedure of these courts are regulated by the Constitution, the Code of Court Organization and the Status of Judges (Law 1756/1988, as repeatedly amended), and the Code of Administrative Court Procedure (Law 2717/1999, as repeatedly amended). The latter code, despite its general title, does not apply to the Council of State. Administrative justice in Greece is thus split into two parts of partly competitive jurisdictions, creating confusion, expanding the time, and increasing the costs of judicial protection. The civil courts adjudicate all ‘private disputes’ (i.e., disputes between individuals and private companies or associations) as well as cases of non-contentious proceedings (Art. 94 IV Const.; see Ch. 16, Sections II B, III and XI). Final appeals on points of law, both in civil and criminal cases, are heard by the Supreme Civil and Criminal Court, called Areios Pagos (´Aρειος Πάγος, after the highest court of ancient Athens; see Ch. 16, Sections II B, VIII E). In special cases and in order to achieve uniform application of the same legislation, the law may assign the hearing of categories of private disputes to administrative courts or the hearing of categories of ‘substantive administrative disputes’ to civil courts (Art. 94 III Const.). Especially with regard to expropriation, Article 17 IV Const. provides that a law may provide the establishment of a uniform jurisdiction, notwithstanding Article 94, for all disputes and cases relating to expropriation (see below, Section IV D 9). Organization and procedure of the civil and criminal courts are regulated by the Constitution, the Code of Court Organization and the Status of Judges, and the Code of Civil Procedure or the Code of Criminal Procedure, respectively.

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The Court of Audit (Ελεγκτικό Συνέδριο, Elengtiko Synedrio), established in 1833 after the French Cour des Comptes, is partly a high court of law and partly an independent administrative authority. It is responsible for auditing public accounts, for reviewing the legality of important public contracts, and for deciding on public sector pensions (Art. 98 Const., as amended in 2001; see also Art. 94 I Const., as amended in 2001). Organization and procedure of the Court of Audit are regulated by the Constitution, the Code of Court Organization and the Status of Judges, and Presidential Decrees 774/1980 and 1225/1981. The Constitution also provides for a special court for cases of miscarriage of justice (Art. 99), and a special court to hear charges against ministers and against the President (Arts 86, 47 II, 49). Both are ad hoc courts and decide in the first and last instance. Their organization and procedure are provided for by Law 693/1977, as repeatedly amended, and Law 3126/2003. By virtue of Article 88 II Const., as amended in 2001, the special court for cases of miscarriage of justice adjudicates, in an enlarged composition, disputes concerning all kinds of remunerations and pensions of judges. In such cases, its organization and procedure are provided for by Law 3038/2002. The Constitution also sets up, and defines the jurisdiction of, the Supreme Special Court (Ανώτατο Eιδικό Δικαστήριο, Anotato Eidiko Dikastirio; Art. 100 Const., Law 345/1976, as repeatedly amended). Its jurisdiction includes review of parliamentary elections and referendums; review of the substantive constitutionality or interpretation of provisions of acts of Parliament in case of disagreement between the three high courts (Council of State, Areios Pagos, and Court of Audit); and the resolution of disputes concerning the qualification of a rule of international law as a ‘generally accepted rule’ within the meaning of Article 28 I Const.. This special court is a constitutional court of limited jurisdiction. A statutory provision declared to be unconstitutional by this court is null and void from the pronouncement of the judgment, or from the time stated therein. This judgment is binding erga omnes. Together with the judgments of administrative courts annulling individual administrative decisions and statutory instruments, but not acts of Parliament (see Art. 50 I Const., and Legislative Decree 170/1973, ‘codified’ in Presidential Decree 18/1989), this is the only instance where Greek law recognizes something akin to the doctrine of stare decisis (for the doctrine of res judicata, see Ch. 16, Section IX B). Court proceedings are, as a rule, public, but the judges deliberate in camera. Judicial decisions must contain a statement of their reasons, may include dissenting opinions, and must be pronounced at a public hearing (Art. 93 II, III Const.). Judgments are known by the name of the court which rendered them, a serial number, and the year (for example: Council of State 235/1985). C.

STATE AND CHURCH

The relations between State and church in Greece are sui generis. There is neither an ‘established Church’ nor a complete separation of church and state. The

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wording in Article 3 I Const. that ‘the prevailing religion in Greece is that of the Eastern Orthodox Church of Christ’ is understood not to imply predominance over other religions or churches. No high public official need be a member of the Orthodox Church. It is true that the President of the Republic (Art. 33 II Const.) must take an oath ‘in the Name of the Holy, Consubstantial and Indivisible Trinity’ (which is also a traditional preamble of all Greek constitutions), and this means that the President must be a Christian. However, it does not mean that he has to be an Orthodox, as most Christian denominations accept the Trinity. Furthermore, unlike the King under the Constitution of 1952 (Art. 43 III), the President does not swear ‘to protect the prevailing religion of the Greeks.’ While Article 1 of the 1952 Constitution prohibited proselytism and any other interference with the prevailing religion, Article 13 II (3) Const. prohibits proselytism in general. Aside from stating as a matter of fact that nearly all Greeks belong to the Orthodox Church, the term ‘prevailing religion in Greece’ reflects the tradition under which the Constitution guarantees the dogmatic unity of the Greek Orthodox Church with the Ecumenical Patriarchate of Constantinople, but also its autocephalous character (i.e. its independence). The statutory charter of the Church of Greece, provided for in Article 3 I Const., was enacted in its present form as Law 590/1977. III.

THE MAIN ORGANS OF STATE

A.

PARLIAMENT

1.

Composition and Election

Parliament consists of one chamber with between 200 and 300 (traditionally 300) members, elected for a term of four years through a direct, general and secret ballot (Art. 51 I, III Const.). Every citizen who has completed his 18th year, except in cases of legal incapacity and conviction for certain felonies, is entitled to vote (Art. 51 III Const., Art. 4 of Presidential Decree 351/2003). Every voter who has completed his 25th year is eligible to be elected as a member of Parliament (Art. 55 I Const.). Public servants (but not university professors) and soldiers, mayors and chairmen or managing or executive directors of public corporations must resign before they submit their candidacy (Art. 56 I, II Const.). Moreover, public servants, officers of public corporations, and members of independent authorities, may not be candidates in the constituencies where they served or to which their local powers extended during the last 18 months of the four-year parliamentary term (Art. 56 III Const.). The Constitution does not determine the electoral system, but allows Parliament to decide thereon (Art. 54 I Const.). Parliament has repeatedly changed the electoral system. Law 1516/1985 adopted a so-called ‘reinforced proportional representation’ system that, despite its name, strongly favored the two major parties. Law 1847/1989 introduced a so-called ‘simple proportionality’, favoring all

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but the first party. This change was meant to hinder the then opposition from winning a majority of parliamentary seats. When, after the third rapidly successive election in 1990, the opposition did succeed in forming a government, based on a marginal majority, it passed Law 1907/1990 that reintroduced a version of the original ‘reinforced proportional representation’. Given the usual Greek political constellation of two major and two or three small political parties, this system was likely to produce, as a rule, a parliamentary majority and a stable government. Law 1907/1990 also introduced a threshold of 3 per cent of valid votes, which a party must achieve nationally to qualify for seats in Parliament. Under Article 54 I Const., as amended in 2001, The electoral system and the constituencies are determined by law, which enters into force as from the elections after next, unless the law provides that it enters into force immediately as from the next elections, in a provision which was voted by two-thirds of the total number of the members of Parliament. Before the elections of 2004, the electoral system was changed again by Law 3231/2004, which applies as of the next election, i.e. the election following the one of 2004. This law introduced a variation of a ‘reinforced proportional representation’ system strongly favoring the first party, while maintaining the threshold of 3 per cent of valid votes which a party must achieve nationally to qualify for seats in Parliament. Members of Parliament are elected as a rule by local constituencies. Voters have the right to choose individual candidates from a list submitted for the particular constituency by each party. Law 1303/1982 abolished this preferential vote (i.e. ‘cross’) and introduced to all 56 constituencies the ‘list system’, so that the voter could only choose a party but not individual candidates within that party. The candidates were elected according to the position of their name on the party list for their constituency. However, Law 1847/1989 reintroduced the preferential vote. Law 3231/2004 qualifies it by adding an exception in case of an election called within 18 months from the previous one, when the politicians’ finances are still strained. Up to one-twentieth of all representatives (in fact now only 12 members; Art. 2 of Presidential Decree 351/2003) are elected not by local constituencies but by the whole country. These seats are divided among the political parties according to their national poll results and in priority of the lists of names they had submitted for the election (Art. 54 III Const.). The Constitution contains long lists of parliamentary ineligibilities (Art. 56) and incompatibilities (Art. 57). The 2001 amendment added to this list the incompatibility, sanctioned by disqualification, of the duties of a member of Parliament with any profession. Parliament has failed to pass legislation implementing this controversial provision, which was challenged by a disqualified member of Parliament before the European Court of Human Rights. The Court did not decide the case in principle, but held that the application of the new provision to the members of Parliament elected before its enactment deprived the constituents of the candidate they had freely and democratically chosen to represent them in Parliament, in breach of the principle of legitimate expectation, and concluded that there had

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been a violation of Article 3 of the First (Additional) Protocol to the European Convention on Human Rights and Fundamental Freedoms (ECHR).4 Disputes about the elections are adjudicated by the Supreme Special Court (Art. 100 I Const., Arts 6, 24–34 Law 345/1976; see above, Section II B 6). 2.

Political Parties

The main participants in parliamentary elections are the political parties rather than independent individuals. The Constitution guarantees the citizen’s freedom to establish and to join a political party (Art. 29 I), and provides that the ‘organization and activity of political parties must serve the free functioning of democratic government.’ Law 53/1974, adopted soon after the fall of the dictatorship, required that political parties submit a declaration that they oppose the violent pursuit of power, or the overthrow of the free democratic system of government (Art. 1 II). However, these provisions have not been implemented. Nevertheless, before they start operating, political parties have to submit a declaration stating that their organization and activity serve the free working of democratic government. By this declaration, they acquire legal personality, as well as the exclusive right to their name and emblem (Art. 29 Law 3023/2002). The Constitution does not provide for the possibility of a prohibition of political parties. In Parliament itself, status and strength of political parties are in many ways relevant (Arts 37 II, 38, 68 III, 73 IV Const.). The leader of the party with the majority of parliamentary seats is appointed Prime Minister (Art. 37 II Const.). In the absence of a majority party, the leader of the relatively largest party, and subsequently the leaders of the second and third largest parties are asked to form the Government by the President of the Republic (Art. 37 III Const.). On the other hand, Greek political parties lack generally the democratic structure that would provide an adequate system of checks and balances. Financial support by the state to political parties for their electoral and operating expenses was first provided by Law 1443/1984. After the 2001 amendment, the Constitution itself (Art. 29 II) provides for state subsidies to political parties, and includes rules regarding their transparency and control, as specified by law (Law 3023/2002, as amended by Law 3242/2004). On the other hand, the amended Constitution sets limits and restrictions to all electoral expenses (Art. 29 II). During the period immediately preceding a parliamentary election, political parties are allocated public and private television time proportionate to their parliamentary strength. Both the obligatory and free transmission of political party messages during the pre-electoral period, and the National Council for Radio and Television (founded by Law 1866/1989), are now guaranteed by the Constitution itself, as amended in 2001 (Art. 15 II) and specified by law (Law 1730/1987, as amended by Law 1866/1989, as further and repeatedly amended). Greek public broadcasting is not a monopoly anymore; in fact, there is a remarkable number of public and private radio stations and television channels. Greece is an 4.

Lykourezos v. Greece, No. 33554/03, , September 20, 2006.

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over-televised country, a fact that does not necessarily mean high standards of reliability and professionalism, objectivity and fairness. 3.

Legal Status of Members of Parliament

The legal status of members of Parliament is the subject of a series of traditional constitutional provisions (Arts 59–63 Const.) on taking the oath of office, free mandate, indemnity, immunity, compensation, etc. The same is true for the provisions on Parliament’s organization and working, duration, rules of procedure, presidium, public sessions, quorum and majority, investigation committees and petitions (Arts 64–69 Const.). Parliament can sit not only in pleno but also in section during the period in which Parliament is in recess (Arts 70 I, 71 Const.). Its legislative work may also be conducted by standing parliamentary committees, as specified by the Standing Orders (Art. 70 II Const.). Important subject matters have to be dealt with by the plenum (bills on the subjects of Arts 3, 13, 27, 28 II and III, 29 II, 33 III, 48, 51, 54, 86 Const; bills implementing the Constitution on the exercise and protection of human rights; bills on the authentic interpretation of statutes; on any other matter referred to the plenum by special provision of the Constitution or for the regulation of which a qualified majority is required, as well as the budget and the financial statement of the State and of Parliament, Art. 72 I Const.). 4.

Legislation and Parliamentary Control

Legislative procedure follows traditional patterns. The proposal for a new statute may originate either in Parliament or the Government; the latter is the rule. Bills of financial nature can only be introduced by the Government (Art. 73 Const.). A bill is first debated by a parliamentary committee (Art. 74 II Const.). Then Parliament debates and votes, first on the principle of the bill, then article-byarticle, and then on the bill as a whole. As a rule, these debates and votes take place without interruption (Arts 76 I, 94 I of the 1987 Standing Orders and various decisions of the plenum), except in the case of bills that have been sent back to Parliament by the President of the Republic on the ground of unconstitutionality (Arts 76 II, 42 II). After the 2001 amendment, the Constitution provides that legislative work other than the subjects that have to be dealt with by the plenum (Art. 72 I Const.), and bills that are considered urgent by the Government, may also be debated by the standing parliamentary committees that are established and sit during the session, as specified by the Standing Orders (Art. 70 II). A bill debated and voted in the competent standing parliamentary committee is then introduced in the plenum and is debated and voted in a shorter procedure. For statutes it considers to be urgent, the Government may also initiate a summary legislative procedure (Art. 76 IV, V). Codes or statutes ‘codifying’ (i.e. consolidating) provisions in force or re-enacting repealed laws (with the exception of tax laws) may only be voted upon as a whole, provided they were drafted by a committee set up by statute (Art. 76 VI, VII). Within a month after approval by Parliament, statutes are promulgated

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by the President and published in part A of the Government Gazette (Art. 42 I Const.). Statutes and other legislative instruments are known by their number and the year of publication (e.g., Law 1406/1983). 5.

Dissolution of Parliament

Parliament may, and in some cases must, be dissolved by the President before the end of its term. The wide powers granted by the Constitution to the President to dissolve Parliament were either abolished altogether or transformed into duties by the 1986 amendment, with the sole exception being the President’s discretionary power to dissolve Parliament without the Government’s countersignature (Art. 35 II(c) Const.) ‘if two governments had resigned or were voted down by Parliament and its composition does not ensure stability of government’ (Art. 41 I Const). All other cases of dissolution of Parliament are obligatory for the President. Thus the President must dissolve Parliament: (a) if exploratory mandates to form a Government enjoying Parliament’s confidence, or an all-Parliamentary-party government have been unsuccessful (Arts 37 III, 38 I Const.); (b) if the Government, although enjoying Parliament’s confidence, requests its dissolution in order to renew the people’s mandate in view of particularly important national questions (Art. 41 II Const.); and (c) if Parliament has failed to elect a new President in three ballots (Arts 32 IV, 41 V Const.). In cases (a) and (c), no countersignature is needed (Art. 35 II Const.). The new Parliament cannot be dissolved again within a year, save in the cases of Articles 37 III and 41 I (Art. 41 IV Const.). B.

THE PRESIDENT OF THE REPUBLIC

The President is elected for a five-year term by Parliament rather than by direct popular vote. To be eligible for the presidency, a person must be: (a) at least 40 years old; (b) a descendant of a Greek father or mother (before the 2001 amendment, only the descendant from a Greek father was eligible); (c) a Greek citizen for at least five years; and (d) legally entitled to vote. He is eligible for re-election only once (Arts 31, 30 V Const.). Although elected by Parliament (Art. 32 Const.), the President is not politically accountable either to it or the people. He may be deposed only for high treason or intentional violation of the Constitution, and only upon criminal impeachment proceedings originating from within Parliament and conducted before the special court for charges against ministers (Arts 49 I, 86 Const.; Law 265/1976). C.

THE GOVERNMENT

1.

Constitutional States

The executive power is entrusted to both the President and the Government (Art. 26 II Const.). However, the country’s general policy is determined by the Government alone (Art. 82 I Const.). Ministers and vice-ministers are jointly accountable to Parliament

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for the Government’s general policy and cannot be relieved from this responsibility by the President’s mandate (Art. 85 Const.). Moreover, as a rule, the President’s decisions must be countersigned by the appropriate minister (Art. 35 Const.). The Government depends on Parliament’s confidence (Art. 84 I Const.). Within 15 days of the swearing in of the Prime Minister, the Government must, and at any other time may, ask Parliament for a vote of confidence. Parliament may, on its own initiative, withdraw its confidence from the Government as a whole, or from a particular minister. However, the Constitution provides for procedural rules that make it difficult to withdraw confidence recklessly (Art. 84 II–VII; see also Art. 41 I). Once Parliament withdraws its confidence from the Government, the President dismisses the Prime Minister (Art. 38 I Const.). This applies mutatis mutandis to the minister who lost Parliament’s confidence. 2.

Composition

Composition and function of the Government are regulated mainly by Law 1558/1985, as amended (contained in its larger part, together with other relevant provisions, in ‘codified’ Presidential Decree 63/2005). The Government (κυβέρνηση, kyvernisi; also known as the ‘Council of Ministers’ = ‘cabinet’) consists of the Prime Minister (πρωθυπουργός, prothypourgos) and the ministers (υπουργοί, ypourgoi), each of whom is in charge of a particular ministry. One or more ministers may be appointed as deputy prime minister(s). The Constitution also mentions deputy ministers and ministers without portfolio (the latter referred to by the law as ‘ministers of state’), whose scope of powers are determined by the Prime Minister. Below the ministers there are ‘vice-ministers’ (υφυπουργοί, yfypourgoi), i.e. junior ministers who, under the Constitution, may be members of the Government, but under Law 1558/1985 are not. Law 1558/1985 provides for one to two junior ministers in almost every ministry. The scope of their work is jointly determined by the Prime Minister and the appropriate minister. Ministers are appointed and dismissed by the President at the Prime Minister’s proposal (Art. 37 I Const.). Law 1558/1985 and subsequent legislation have considerably strengthened the already strong position of the Prime Minister who is now an all-powerful figure. After the 1986 and 2001 amendments, the Prime Minister seems to wield as much power as any other western head of government, whether president or prime minister. 3.

Cabinet Committees

Cabinet committees are set up from within the Government. Some are provided for by the Constitution itself (e.g. Art. 82 III, IV) or established by statute (Law 1558/1985). The most important among them are the following five (see Art. 15 of ‘codified’ Presidential Decree 63/2005): (a) The very important eight-member Government Committee, chaired by the Prime Minister and acting within the framework of the Cabinet’s

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(b)

(c) (d)

(e)

decisions and directions, takes the necessary measures for implementing Government policy, monitors and coordinates the implementation of its own and the Government’s decisions by the ministers, and discusses and decides all subjects referred to it by the Prime Minister. The 11-member Government Council on Foreign Policy and National Defense, chaired by the Prime Minister, is responsible for foreign and defense policy, as well as intelligence and public order. It also selects the leadership of the armed forces and the police (see Art. 82 IV Const. and Law 3132/2003). The nine-member Institutional Committee, chaired by the Minister of the Interior, Public Administration and Decentralization. The nine-member Economic and Social Policy Committee is chaired by the Minister of Economy and Finance. Within the framework set up by decisions taken by the Prime Minister and the Council of Ministers, this committee adopts measures regarding general matters of economic and social policy, and follows and supervises their implementation (see Art. 82 III Const. and Law 2232/1994). The six-member Major Works and Structures Committee is chaired by the Minister of Environment, Spatial Planning and Public Works. It coordinates and controls major works and structures.

IV.

ADMINISTRATION

A.

CENTRAL GOVERNMENT

1.

Ministers – Ministries

The government in the sense of public administration (δημόσια διοίκηση, dimosia dioikisi), or simply administration, is divided into central (direct state or government administration) and local (decentralized administration). The central government is divided into departments-ministries. The Constitution provides neither for the number nor for the scope of the ministries. This is done by statute (currently by Law 1558/1985, as amended and consolidated in ‘codified’ Presidential Decree 63/2005) which now provides (Art. 48 I of Presidential Decree 63/2005) for 18 ministries in the following order of precedence, which is rather arbitrary and partly reflects the political importance of the incumbents: Interior, Public Administration and Decentralization; Economy and Finance; Foreign Affairs; National Defense; Development; Environment, Spatial Planning and Public Works; National Education and Religions; Employment and Social Protection; Health and Social Solidarity; Agricultural Development and Foods; Justice; Culture; Tourism Development; Transport and Communications; Public Order; Merchant Marine; Macedonia-Thrace; Aegean and Island Policy. The Prime Minister may change the names of ministries and their order of precedence. At the top of each ministry there is a minister and, as a rule, up to three deputy or vice-ministers or ministers of state.

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Every ministry is divided into directorates general, directorates, sections, etc. The directorates general were abolished by Law 1232/1982, but reinstated by Law 1892/1990. The law also provides for a considerable number of self-contained authorities (general secretariats) directly answerable to the appropriate minister. Moreover the 2001 amendment, adopting previous practice, provides for, and upgrades, several ‘independent authorities’, and sets out, as specified by law, the rules governing them (see below, under 3). A minister combines two functions: he is a member of the Cabinet and thus responsible for its ‘general policy’ (collective ministerial responsibility: Art. 85 Const.); he is also the head of all authorities of his ministry, its main paymaster, and the chief decision-maker. His responsibilities are determined by law with two exceptions (Art. 83 Const.): the responsibility of the ministers of state are determined by the Prime Minister, and the responsibilities of the vice-ministers by joint decisions of the Prime Minister and the appropriate minister. Each minister is also the disciplinary superior of all civil servants of his ministry, including those of the self-contained general secretariats. He himself is not a civil servant and is not subject to anyone’s disciplinary authority; he is only politically accountable to Parliament, which may withdraw its confidence in him (Art. 84 II Const.), and to the Prime Minister on whose proposal the President appoints and dismisses the members of the government and the vice-ministers (Art. 37 I Const.). Ministers are also subject to civil and criminal responsibility under Articles 85 and 86 Const. and Law 3126/2003. In each ministry there is a secretary general, acting as a political permanent secretary. In addition, secretaries general are in charge of the self-contained general secretariats (see above). The law also provides for special secretaries who are political appointees. They were originally meant to replace the general secretaries (highest ranking civil servants), who were dismissed when the position of secretary general was abolished by Law 1232/1982. But when this position was reinstated by Law 1892/1990 the special secretaries remained. 2.

Regional Authorities – Decentralization (αποκέντρωση, apokentrosi)

Under Article 101 Const., government authorities are ‘decentralized’. This means that the regional authorities, although appointed and supervised by the central government, are entrusted with considerable decision-making powers within their region. In fact, the Constitution confers on them ‘general decision-making powers on matters of their region’ (Art. 101 III). Central administrative authorities have special powers and are entrusted with the general direction, coordination and review of the legality of the acts produced by the regional authorities. The regions are both geographical divisions and administrative units. With the exception of the Ministry of Macedonia-Thrace and the Ministry of the Aegean and Island Policy, all regional authorities are integrated into the regions. The traditional first level decentralization system was based on the region called νομός (nomos, plural: nomoi; prefecture). The whole country, with the exception of

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Mount Athos with its monastic community (Art. 105 Const.), is divided into 51 nomoi (the district of the nomos of Attica, where almost one-third of the population of the country is concentrated, is divided into four regions, called in this case νομαρχίες, nomarchies). The nomos is also a voting district, with the exception of the nomoi of Attica and Thessaloniki, which are divided into five and two such districts, respectively (Art. 1 of ‘codified’ Presidential Decree 351/2003). Within the framework of the traditional first level of decentralization the administrative head of the nomos was the nomarch (νομάρχης, nomarchis). The original nomarch had a sui generis position in the Greek administrative system. Not only was he the head of the nomos, but he was also the government’s representative therein. In these two qualities he ensured the implementation of the law, had precedence over all civil and military authorities, and was superior to all civil authorities of the nomos, except the law courts. In the 1990s, Parliament repeatedly reformed the traditional system, creating unprecedented confusion. The nomarchs, as state authorities, were abolished, and their powers, much reduced, were transferred to the ‘regional directors’ which, soon after, were replaced by the ‘regional secretaries general’. At the same time, the law established a two-level decentralization system; its establishment goes hand in hand with the establishment of a two-level local government (see below, B 1). According to this system the whole country, with the standard exception of Mount Athos, is divided not only into nomoi, but also into 13 superimposed regions called periferies (περιφέρειες), each one consisting of groups of geographically neighboring nomoi: Eastern Macedonia and Thrace, Central Macedonia, Western Macedonia, Epirus, Thessaly, the Ionian Islands, Western Greece, Central Greece, Attica, the Peloponnese, the Northern Aegean, the Southern Aegean, and Crete. The central government was thus not just ‘central’, but also ‘deconcentrated’ in regional units of two degrees. Subsequently the first level of decentralization was abolished, so that now the peripheries constitute the sole level of decentralization (the nomoi having no longer this status). The powers of the nomarch are partially devolved upon the administrative heads of the superimposed regions, the general secretaries of the peripheries. Most powers of the former nomarchs and of regional authorities, which had been integrated into the nomoi, were transferred by Law 2218/1994 to the second-level local government corporations, which have the general power to administer local affairs within their territory. This massive transfer of competences from the central government to local government was hardly compatible with the constitutional guarantee of regional authorities, and with the distinction of public affairs in general and local matters (central and local government), of which only the latter fall within the scope of local administration. Nevertheless, it was in principle held constitutional by the Council of State, although the court reserved a special examination of each individual case.5

5.

SE (full bench) 3440–3444/1998, Hell.Dni 40 (1999) 965–966.

Constitutional and Administrative Law 3.

43

Independent and Regulatory Authorities

Since the late 1980s, several ‘independent authorities’ were set up, probably upon the model of the British independent authority or the French haute autorité. Independent authorities are part of the state administration; the degree of their administrative and financial independence from ministerial control varies, depending on the particular statutory provisions. They have consultative and decision-making duties in sensitive matters regarding, mainly, human rights and the economy. The 2001 amendment introduced provisions on five independent authorities: the Radio and Television Council (Art. 15 II Const.), the Authority for the Protection from Personal Data Processing (Art. 9A Const.), the Authority Ensuring Confidentiality of Communications (Art. 19 II Const.), the Supreme Council for (Public Service) Personnel Selection (Art. 103 VII Const.), and the Citizen’s Advocate (Art. 103 IX Const.). Further independent authorities can be created by statute. The 2001 amendment also introduced general rules about independent authorities, as specified by law and, regarding their parliamentary control, by Standing Orders of Parliament (Art. 101A Const.). Apart from these authorities, several statutes as well as Community legislation provide for a number of ‘regulatory authorities’, regarding, e.g., competition, energy, or telecommunications and post. Regulatory authorities serve an important role in the modern state as guarantors of a properly functioning free market and protectors of the consumer and the environment. Members of independent or regulatory authorities may not stand for, or remain members, of Parliament (Art. 56 III(b) Const.). B.

LOCAL GOVERNMENT (τοπική αυτοδιοίκηση, topiki autodioikisi)

1.

Decentralization on Two Levels – Local Government Corporations – Towns and Villages

Under Article 102 I Const., the administration of local affairs belongs to the local government corporations (principle of decentralization). The Constitution provides for two levels of local government. At the first level of local government there are two categories of corporations, the town municipality (δήμος, dimos; plural: δήμοι, dimoi) and the village community (κοινότητα, koinotita; plural: κοινότητες, koinotites). The second level of local government, first provided for in 1986, but established in 1994, consists of ‘regional self-governed corporations’ (νομαρχιακές αυτοδιοικήσεις, nomarchiakes autodioikiseis), under elected but weak ‘nomarchs’, who have only the name common with the old ones. The new regional organizations can either be ‘simple’ corporations, the territory of which coincides with the district of nomos, or ‘composite’ corporations, the territory of which extends to the districts of more than one nomoi. In one single case, the second-level local government corporation of Athens-Piraeus is considered a composite corporation, although its territory comprises the territory of the nomos

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of Attica alone; that is because the district of this nomos is divided into four nomarchies (see above, A 2). The local government corporations are legal persons of public law. They are independent in their own administration (Art. 102 II Const.), but not ‘autonomous’, i.e. they cannot issue their own by-laws unless authorized by statute. The Constitution (Art. 43 II) permits delegation of legislative powers to authorities other than the President of the Republic only if it relates to ‘specialized matters or matters of local interest or of a technical or detailed character.’ The current local government law (Towns and Villages Code, Law 3463/2006) provides, in Article 79, that the town or village council may issue by-laws on a considerable number of matters, e.g., protection of the environment from pollution, protection of the citizens’ health from obtrusive activities, cleansing, traffic and parking of vehicles, open-air markets, parks, squares and areas in common use, water and sewage systems, the conditions for the setting up and the operation of establishments and enterprises and for the conducting of recreational facilities, the licensing of which falls within their competence (e.g. theatres, cinemas and similar establishments, but also establishments offering food and drinks), etc. The town or village councils are also granted regulatory powers for the determination of duties and user charges (grazing, use of pavements, roads, squares and areas in common use, advertising, cleansing, lighting, etc). The Second-Level Local Government Code (repeatedly amended and ‘codified’ by Presidential Decree 30/1996, with numerous subsequent amendments) goes even further and provides that the second-level councils may issue by-laws on all matters that fall under the competence of these corporations, or are transferred to them by law. In view of the generality of this provision and the significance of the matters it refers to, it is doubtful if this delegation of legislative power complies with the conditions set up by the Constitution (Art. 43 II; see above, Section II B 3). Since 1912, local government corporations have been divided into town municipalities and village communities. ‘Town’ was the capital of every nomos, as well as every community with more than 10,000 inhabitants. But there were exceptions, e.g., every spa was a town, so that the number of towns was disproportionately large. The same was true with village communities: every ‘separate’ community with a population of 1,000 and sufficient means to finance its administration could be recognized as a municipality upon application by at least threequarters of its inhabitants. These conditions were stricter in several points than the ones provided by the previous local government code. Law 2539/1997 reformed the first level of local government, abolished the existing corporations, and established in total 900 towns and 133 villages, which were created by merging previous corporations. The districts of the abolished corporations or of the annexed settlements constitute a sub-division of the new corporation called ‘local division’, which comprises the population of the abolished corporation, or of the annexed settlement. According to the new Towns and Villages Code (Law 3463/2006), towns are the corporations established as such by law (mainly Law 2539/1997), those that emerge from the merger of towns and/or villages, as well as villages having a population over 4,000 according to the last census. Villages are the

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corporations established or maintained as such by law (mainly Law 2539/1997). In any event, the mountainous and insular character of Greece, and the relative lack of inhabitants in the countryside, make it often difficult to create municipalities which are both cohesive and viable. 2.

Local and Central Government Matters

The Constitution entrusts the local government of both levels with the administration of all local matters (Art. 102 I). The actual authority of the local government may, however, suffer from the fact that the line between national and local affairs is not always clear; consequently, this line is ultimately drawn by Parliament. This fact, coupled with the chronic financial inadequacy of most municipalities, explains the weak position of local government in the Greek administration (see Ch. 19, section V A). In addition to their ‘exclusive’ tasks, local government corporations share ‘concurrent’ powers with the central government regarding matters that by nature cannot be exercised by local government alone. For the corporations of first level of local government, Article 75 of the new Towns and Villages Code (Law 3463/2006) contains a long, but still indicative list of tasks. Although this provision no longer makes an express mention of it, it does not set aside the distinction between ‘exclusive’ and ‘concurrent’ tasks. The tasks mentioned in the list should be considered in principle as exclusive (i.e. to the exclusion of central government); only in so far as by nature they cannot be exercised by local government alone should these tasks be considered concurrent. Nevertheless the law may not turn the totality (or core) of local government tasks to concurrent ones; this would also be in violation of the European Charter of Local Self-government (ratified by Law 1850/1989, GG A 114). The second-level local government corporations have the task of administering local affairs concerning their district. ‘Local affairs’ of second-level local government are even more difficult to define, since they have to be distinguished both from the first-level local affairs, and from the affairs of state administration, exercised by central or regional organs. As mentioned above under A 2, Law 2218/1994 transferred, with certain exceptions, all relevant powers of the former nomarchs and of regional authorities that were integrated into the nomoi to the second level of local government. Although this massive transfer of powers from the central government to local government corporations was hardly compatible with the constitutional guarantee of regional authorities, and the distinction of the public affairs in general (central government) and local matters, of which only the latter fall within the scope of local government, it was in principle (to be checked in each individual case) held constitutional by the Council of State.6 Under the 2001 amendment, the law may assign to local government tasks belonging to the State (Art. 102 I Const.). However, SE (full bench) 3661/20057 opposed delegation of legislative powers concerning regional and urban planning 6. 7.

Ibid. DtA 8 (2006) 709–734.

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to local government corporations, on the ground that this is a matter of general and not only local interest, which can only be delegated to the President of the Republic to be exercised by presidential decree on proposal by the competent minister (Art. 43 II Const.). 3.

Organization

On the first level of local government, the organization of village communities is simpler than that of town municipalities. A village community is governed by the village council and the chairman. Depending on population, a village council consists of nine to 11 members, including the chairman. A town is governed by the town council, the town committee and the mayor. The town council consists of 13–45 councilors, according to population. The town committee consists of the mayor or a deputy mayor and four to eight councilors. The general decision-making power belongs to the council. The other local authorities only have specific powers, i.e. powers expressly conferred to them by statute. The mayor and the chairman of the village council propose and implement council decisions, are the superiors of the municipal employees and countersign the payment orders of the municipality. The town committee has certain preparatory, controlling, and decision-making powers, especially with regard to the budget. In urgent cases the mayor may act alone in matters falling within the powers of the committee, subject to the committee’s subsequent approval. In a number of cases determined by law, the town or village councils may issue by-laws. The town and village councils are elected in a general election every fourth year, simultaneously throughout the country. In towns, the winning list is the one that gains at least 42 per cent of the votes; if no list has gained this percentage of votes, the ballot is held again between the two lists that have received the most votes. In village communities the election is decided in favor of the list receiving the most votes (‘relative majority’). The leading candidate of the successful list is appointed chairman of the council. The second-level local government corporations are governed by a council (νομαρχιακό συμβούλιο, nomarchiako symvoulio), a committee (νομαρχιακή επιτροπή, nomarchiaki epitropi) and the nomarch (or, in composite corporations, the president of the corporation). This nomarch is not a regional authority of the state, as was the nomarch in the former first-level decentralization system (see above, A 2), but an organ of the second-level local government system. The council consists of 21–37 members, according to population, including the chairman. The president of the composite corporation, the nomarch and the members of the council are elected in a general election held every fourth year, throughout the country simultaneously with the election of the organs of first-level local government. Here too, the general decision-making power belongs to the council. However, only delegated powers to issue by-laws belong to the council, while those exercised by individual administrative decisions belong to the nomarch, who is responsible for the implementation of the council’s decisions. He is also the head of the service, the superior of the employees, and the paymaster of the corporation.

Constitutional and Administrative Law 4.

47

Finance

Under Article 102 V Const., the State ensures that local government has the necessary financial means for the discharge of its functions, ensuring at the same time transparency in the management of funds; every transfer of tasks from central or regional officers of the state to local government also entails the transfer of the corresponding funds. On the first level of local government, the law distinguishes between ordinary and extraordinary revenues on the one hand, and obligatory and non-obligatory expenditures on the other. All revenues and expenditures must be included in the yearly municipal budget that is decided by the village or town council and audited by the general secretary of the region. The latter calls upon the council to correct the budget: (a) if revenues that are strictly provided for, or obligatory expenditures, are not already included in the budget; (b) if the budget includes revenues or expenses that are not provided for by law. The expenditures of local government corporations are subject to a sampling repressive control and the expenditures of towns with a population exceeding 5,000 to a preventive control carried out by the commissioner’s service of the Court of Audit. The financial management of local government corporations of first and second instance may also be controlled by the Inspection Agencies of the Ministries of Economy and Finance and of the Interior, Public Administration and Decentralization. 5.

State Supervision

Local government corporations are independent from the central government. But they are subject to state supervision (administrative supervision; διοικητική εποπτεία, dioikitiki epopteia) that, after the 2001 amendment, confines itself exclusively to a review of legality, and may not frustrate their ‘initiative and free activity’ (Art. 102 IV Const.). Unlike the previous regime, local government decisions are immediately enforceable. State supervision over them is no longer partly ‘preventive’ (especially with regard to finances) but only ‘repressive’ (ex post facto), consisting in the annulment of acts that are held illegal, and it is exercised as specified by law by the general secretary of the region and the supervisory committee (‘special committee’ in the case of local government corporations of first instance). Any municipal voter or affected person is entitled to initiate state supervision, and challenge decisions of local authorities before the administrative courts. The law also provides for the ‘disciplinary liability’ of elected local government officers, which may lead to the forfeiture of their office. Disciplinary liability is activated either automatically in the cases provided by law (e.g., in case of certain criminal sentences) or, as a rule, after the approval by a committee consisting in its majority of judges (Art. 102 IV Const.). C.

SPECIALIZED SELF-GOVERNMENT

While local government has general functions within a certain geographical area, there also exist self-governing bodies with specialized functions. These are mainly the legal persons of public law and the public corporations.

48 1.

Prodromos D. Dagtoglou Legal Persons of Public Law (νομικά πρόσωπα δημοσίου δικαίου, nomika prosopa dimosiou dikaiou)

These are either self-governing bodies discharging state functions, such as universities and social security funds, or professional self-governing institutions, such as bar or medical associations. The latter are administratively and financially totally autonomous. 2.

Public Corporations (δημόσιες επιχειρήσεις, dimosies epicheirisseis)

Public corporations abound in Greece. Most of them belong to the state, and some to municipalities. They are usually subject to the pervasive influence of the state and are now generally regulated by Law 3429/2005. Previously private companies with special ‘concessions’ (e.g., electricity or water supply companies) were succeeded by public corporations (public enterprises). From the 1960s to the 1980s, it was common to transform administrative units (e.g., mail, telecommunications, and broadcasting) that were parts of central government or legal persons of public law, into corporations of private law, to be governed by private law, but in which the state was the only, or main, shareholder. New government bodies were also organized from the outset as ‘public corporations’. While it may be explained by the disadvantages (especially bureaucracy) of public administration and public auditing, this development raises some questions as to the binding rules of public law: may the state escape the limitations imposed by human rights and (administrative) judicial review by transforming parts of its organization into ‘commercial’ companies? Since the Council of State judicially reviews only decisions of bodies belonging to the public administration stricto sensu, any application challenging decisions of such ‘public’ corporations is inadmissible. The result is that the scope of judicial review is thus being steadily restricted (see also below, under D 3). In periods of (relative) economic liberalism, there is a tendency (not often consistent or successful) to reduce the scope of the overblown state sector (δημόσιος τομέας, dimosios tomeas, ‘public sector’: Art. 51 Law 1892/1990, as repeatedly amended), and enhance denationalization and privatization (Art. 25 Law 1914/1990; Law 3049/2002). The three largest public corporations (ΔEH, Public Power Corporation; OTE, Telecommunications Corporation of Greece; and OA, Olympic Airways or Airlines) were exempted from most specialized restrictions of the state sector (Presidential Decrees 360/1991, 361/1991, 362/1991). D.

GENERAL PRINCIPLES OF ADMINISTRATIVE ACTION

1.

Legality of Public Administration

Until recently, the decision-making procedure to be followed by Greek public authorities was not codified in a statute, but in 1999 the Code of Administrative

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Procedure (CAP; Law 2690/1999) was enacted. It mostly adopted parts of the decisions by the Council of State, and repeated some provisions of recent laws. It ignored, however, Community legislation and judgments (not to speak of comparative law), is broadly unaware of modern problems, and lives in the past. The legality of public administration is based on principles of law developed by legal doctrine and case law, mostly incorporated in the current Constitution. The principle of legality (αρχή της νομιμότητας, archi tis nomimotitas) of public administration results from the wider principle of the rule of law, unanimously acknowledged for more than a century in Greece and, since the 2001 amendment, explicitly proclaimed in the Constitution (Art. 25 I) ex abundanti cautela. This principle is also based on Article 50 Const.: ‘The President has only the powers expressly allocated to him by the Constitution and the laws compatible with it.’ This provision originates in the Belgian constitution of 1831 and is repeated in every Greek Constitution since 1864. It not only binds the President (and the King before him) but the executive in general (see also Art. 83 Const.). The legality of administration covers constitutionality as well. This is deduced from the supreme position of the Constitution in the hierarchy of legal rules, and also from the fundamental duty of allegiance of public servants to the Constitution (Art. 103 I Const.; see Art. 120 II, IV Const.). However, before the current Constitution, the Council of State recognized the existence of a (non-enacted) emergency law prevailing over positive law and drawing its legitimacy from public interest. Since the new Constitution provides for special powers and procedures in emergency cases (Art. 48), an extraconstitutional law can no longer claim democratic legitimacy or practical justification. With the exception of the cases regarding the emergency law and expanding the scope of public interest, the Council of State has adhered to the strict view that administrative action not based on a statute is unlawful (see, e.g., SE 1603/19648). 2.

Discretionary Power

Administrative authorities always have discretionary power (διακριτική ευχέρεια, diakritiki efchereia), unless the law provides otherwise (see already SE 97/19299). The limits of discretionary power are drawn by the prohibition of abuse of discretion (détournement de pouvoir). In addition to the limits provided in each particular law, there are also general limitations derived from general principles of law, or directly from the Constitution. The Council of State often refers to the principles of fair administration (αρχή της χρηστής διοίκησης, archi tis christis dioikisis), priority of public interest (δημόσιο συμφέρον, dimosio symferon), equality, and impartiality of public administration. The principle of proportionality (αρχή της αναλογικότητας, archi tis analogikotitas; explicitly mentioned in Art. 25 I Const. since the 2001 amendment) and the principle of legitimate expectations (αρχή της προστατευόμενης εμπιστοσύνης του ιδιώτη, archi tis prostateuomenis empistosinis tou idioti) have also been recognized and applied in an increasing number of 8. 9.

Judgments of the Council of State and of the Court for the Settlement of Conflicts of the Year 1964 vol. 3 (1965) 1961–1962. Judgments of the Council of State of the Year 1929 vol. 1 (1929) 271–273.

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judgments, though under strict conditions (see, e.g., SE 2522/2000,10 1508/2002,11 and 1882/200312). 3.

Administrative Acts

Under Greek law, an ‘administrative act’ (διοικητική πράξη, dioikitiki praxi) includes not only a decision by an administrative authority addressed to a particular individual (i.e. a natural or legal person; ατομική διοικητική πράξη, atomiki dioikitiki praxi), e.g. a building permit or a tax assessment, but also a statutory instrument or a by-law addressed to an uncertain number of individuals and containing legal rules (κανονιστική διοικητική πράξη, kanonistiki dioikitiki praxi; regulation). Administrative acts do not, however, extend to administrative contracts (on the latter see below under 7). It is important to define what is understood by ‘administrative act’, since the legal remedy of an application for annulment is admissible only if it challenges the validity of an administrative act. Applying organizational rather than functional criteria, the Council of State considers as administrative acts only those issued by the central or local government, or other self-governing authority.13 As mentioned above (under C 2), in the last three decades, an increasing number of government authorities or self-governing administrative units have been reorganized into commercial companies with the state as the only (or main) shareholder. In view of this fact, the Council of State’s insistence that only decisions by government authorities can be considered as administrative acts has been criticized as too formalistic. 4.

Reasons for Decisions and Right to Hearing

The Council of State has insisted on the requirement that individual administrative acts affecting interests of their addressees must state their reasons14 (see Art. 17 CAP). Article 20 II Const. guarantees the right to a hearing of persons affected by administrative action before the authorities come to a decision (see also Art. 6 CAP). The Council of State construes this obligation in a restrictive manner. 5.

Void and Voidable Administrative Acts

The distinction between void and voidable administrative acts, while known in legal doctrine, is of no great relevance in court decisions. The Council of State considers voidability as the rule. There is no statutory list of the instances in which an administrative act is void. 10. 11. 12. 13. 14.

DtA (volume hors série I/2003) 333–339. Ibid. 354–357. DtA 5 (2003) 1277–1292. See, e.g., SE 3585/1990, DD 3 (1991) 530–532; 4666/1997, DD 10 (1998) 876–877. See, e.g., SE 276/1986, NoB 34 (1986) 934–936; 1434/1991 (unpublished).

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Revocability of Administrative Acts

An unlawful administrative act adversely affecting a person may always be revoked, and in some cases must be revoked. If an unlawful decision addressed to an individual is beneficial to him, it may be revoked only within reasonable time, unless the addressee had caused the unlawfulness himself, or the revocation is necessary for reasons of public policy. Necessity Law 261/1968 provides that reasonable time may not be shorter than five years, and that revocation has no consequences for the state. It is doubtful whether this drastic exclusion of state liability is compatible with Article 20 I Const. guaranteeing the right of access to courts. A lawful administrative act addressed to individuals and adversely affecting them may always be revoked. A lawful act that is beneficial to them may only be revoked if either such act, or the law, includes a revocability clause, or if revocation is needed in the public interest. 7.

Administrative or Public Contracts

Greek law recognizes the administrative or public contract (διοικητική σύμβαση, dioikitiki symvasi; δημόσια σύμβαση, dimosia symvasi) as a special category of contracts, and allocates disputes arising therefrom to the administrative courts (Law 1406/1983). Reluctant though Greek authorities may be in concluding administrative contracts (instead of issuing unilateral administrative acts), numerous important matters between public authorities and private individuals are dealt with through administrative contracts. As with administrative acts, the criterion applied by the courts is organizational, not functional: to qualify as ‘administrative’, a contract must be a ‘contract with the central or local government’ as a party. It was held that contracts with organizations operating in the public interest, e.g. public corporations, may also qualify as ‘administrative contracts’ (AP 727/196915), but SSC 10/198716 held that only contracts concluded by the state or a legal person of public law qualify as administrative contracts subject to the jurisdiction of administrative courts. Contracts concluded by public corporations registered as private law companies do not qualify as administrative contracts, but are rather deemed to be contracts of private law, subject to the jurisdiction of civil courts. The provisions of the Civil Code regarding contract law apply by analogy to administrative contracts. A number of administrative contracts are subject to approval by administrative act; the most important administrative contracts must be ratified by statute. Neither approval nor ratification alter the legal nature of the contract, or the nature of the claims based thereon. In case of an unforeseeable change of circumstances, the administrative contract may be adjusted or rescinded by the courts under Article 388 of the Civil Code, subject always to the public 15. 16.

NoB 18 (1970) 656–657. DD 1 (1989) 136–138.

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interest. Influenced by French doctrine, the courts adhere to the principle of mutability of administrative contracts, which allows the unilateral alteration or termination of such contracts by an act of Parliament and without compensation. This doctrine is, however, compatible neither with the broader scope of expropriation under the Constitution, nor with Article 1 (protection of property) of the First (Additional) Protocol to the ECHR (AP [full bench] 40/1998, 1780/200517). Since the 1990s, a body of Community law (and the corresponding cases) on ‘public contracts’ has developed, especially in the field of procurement and public works, which increasingly dominates the national law on administrative or public contracts. 8.

State Liability

Under Greek law, state liability for damage caused by public servants is direct, primary, and strict. It exists, as a rule, only for unlawful damage. Under Articles 104–106 of the Introductory Law to the Civil Code, when typical activities of public authorities are concerned, it suffices that the law is (objectively) infringed, and it is not necessary to prove the (subjective) fault of a particular public servant as well. The state is only liable if the infringed legal rule is not meant to mainly serve the public interest. Personal liability of the public servant exists only towards the state, and only when the public servant’s conduct was intentional or grossly negligent and caused positive damage, and not just a mere loss of profits. State liability disputes fall under the jurisdiction of administrative rather than civil courts (Law 1406/1983). 9.

Expropriation

Until recently, the Greek courts would limit the constitutional protection of property (Art. 17 Const.) to real rights in property, movable or immovable, excluding rights in personam. Consequently, since expropriation requiring compensation was limited to cases in which rights in rem were interfered with, the infringement of rights in personam without the award of compensation was deemed constitutional. Not least because of this limited protection of private property, Article 107 of the 1952 Constitution included a special clause guaranteeing foreign investments in Greece. Court decisions restricting protection of private property to rights in rem are, however, hardly compatible with the new Constitution that adopted provisions on the expropriation of an undertaking (as such, not only of its real property) and the compulsory participation of the state in an undertaking (Art. 106 III–V). Recently, under the influence of the ECHR, Areios Pagos began to interpret Article 17 of the Constitution in conformity with Article 1 (protection of property) of

17.

NoB 47 (1999) 752–754, Hell.Dni 47 (2006) 524–526, respectively.

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the First (Additional) Protocol to the Convention, thus accepting that it protects rights in personam as well (see AP 40/1998, 1780/200518). Next to the protection of private property, the Constitution proclaims a ‘social aspect’ of property (Art. 17 I; see Arts 18, 24, 117 III, IV), and authorizes legislation on planning and environment. Under Article 17 Const., expropriating property is only permitted under three conditions: (a) it serves the public good; (b) it is based on an act of Parliament or a statutory instrument; and (c) it includes full compensation, determined by the courts, and paid for before the transfer of property. The former guarantee of the jurisdiction of the civil courts was deleted by the 2001 amendment, and is now provided by the Presidential Legislative Act of December 21, 2001, approved by Law 2990/2002. The procedure for expropriation of real property is now regulated by Law 2882/2001. V.

CONTROL OF PUBLIC ADMINISTRATION AND JUDICIAL REVIEW

Greek public administration is subject to a threefold control, exercised by the administrative authorities (administrative self-control), Parliament (parliamentary control), and the courts (judicial review). A.

ADMINISTRATIVE SELF-CONTROL

There are different kinds of control exercised by administrative authorities or agencies over other administrative authorities or agencies. The ‘hierarchical control’ (ιεραρχικός έλεγχος, hierarchikos elenchos) is exercised by the ‘superior’ over the ‘inferior’ agency or authority within the central or local government or public corporation. Sometimes the law provides for special control organs independent of the administrative hierarchy to decide on formal petitions. The control exercised by the central government over local government (or specialized self-governing public corporations) is called ‘administrative supervision’ (διοικητική εποπτεία, dioikitiki epopteia; see above, Section IV B 5). Finally, financial control is an important form of administrative control. 1.

Hierarchical Control

The hierarchical relationship between superior and inferior authorities or agencies leads to the controlling power of the former over the latter; this structure is called hierarchical control. All administrative organs are subject to this control with the exception of the President of the Republic, the Prime Minister, the ministers and the junior ministers, as well as a number of committees not incorporated 18.

See above, ftn. 17.

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in the organ hierarchy, the independent authorities guaranteed by the Constitution and most tax agencies. These agencies are only subject to judicial review. Hierarchical control encompasses the lawfulness of the inferior’s conduct (έλεγχος νομιμότητας, elenchos nomimotitas; control of legality), but may also extend to the advisability of such conduct (έλεγχος σκοπιμότητας, elenchos skopimotitas; control of advisability). The delineation of the scope of control is not always easy in practice. 2.

Control by Independent Agencies

Additionally to the general hierarchical control, administrative agents are in some areas subject to the control by independent agencies, especially the Inspectors and Controllers of the Public Administration who, on their turn, are controlled by the General Inspector of Public Administration. In politically sensitive areas, administrative self-control is increasingly entrusted to independent authorities (Art. 101A Const.; see also Arts 9A, 15 II, 19 II, 103 VII Const.). 3.

Formal Petitions

Control may be initiated by exercising the general right to petition public authorities (Art. 10 Const.; Law Decree 796/1971; Arts 24 et seq. CAP). If the law allows for the filing, within a certain time-limit, of a formal petition leading to substantive examination of an administrative act, such petition, being similar to an action before a court, is called ‘action-like petition’ (ενδικοφανής προσφυγή, endikofanis prosfygi). It cannot lead to a reformatio in peius, and must precede the petition for judicial review (application for annulment or recourse for substantive judicial review, Art. 45 II of Presidential Decree 18/1989, Art. 63 III of the Code of Administrative Court Procedure). 4.

Administrative Supervision

The control exercised by central government over self-government is restricted to legality control. While a dispute before the courts between administrative authorities is not admissible (with certain exceptions concerning mainly disputes between ministers and independent authorities), the opposite is true, in principle, as between the central government’s supervisory authority (i.e. the general secretary of the region) and the supervised self-governing body. 5.

Financial Control

Financial control applies to public expenses and receipts and is exercised by the appropriate minister or general secretary of the region, the Minister of Economy and Finance and the Court of Audit. In the latter case, financial control takes place under guarantees of judicial independence.

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Control by the Citizen’s Advocate (Ombudsman)

Recently, an indirect and independent administrative control has been added in the form of the mediation conducted by the Citizen’s Advocate (Art. 103 IX Const.). B.

PARLIAMENTARY CONTROL

Control is one of Parliament’s most important tasks. Since Parliament has no power over civil servants, its control focuses on the Government as a whole or a minister in particular, both of which depend on Parliament’s confidence. The minister is politically responsible for the conduct of the civil servants of his ministry, as well as – in the framework of administrative supervision – for the conduct of self-governing bodies, even those organized and acting under forms of private law. For the independent authorities see above, Section IV A 3. Parliamentary control is exercised in pleno at least twice a week; the Standing Orders may also provide for the exercise of parliamentary control by the section sitting when Parliament is in recess, as well as by the standing parliamentary committees established and functioning during the session (Art. 70 VI). C.

JUDICIAL CONTROL

1.

Administrative Courts – Judicial Review as a General Rule

Judicial control of public administration was entrusted to special administrative courts since the first years after the establishment of the modern Greek state. These courts were the Court of Audit (1833), the Council of State (1838), and the district and appellate courts (1838). However, since the administrative courts were then associated with King Otto’s absolutism, they were abolished by the Constitution of 1844 that introduced a system of unitary judiciary. This system was preserved in principle by the Constitutions of 1864, 1911, and 1927. But in 1928, the Council of State was founded by Law 3713/1928 as an administrative court of first and last instance, and the Constitution of 1952 contained specific provisions thereon. At the same time, different special administrative courts were founded by statute, subject to final appeal on grounds of law before the Council of State. The current Constitution provides for an extensive system of administrative courts, parallel to the ordinary civil and criminal courts and, in addition, for the Supreme Special Court entrusted with some tasks usually attributed to a constitutional court (see above, Section II B 6; on the judiciary and its powers see also Ch. 16). The administrative courts do not, however, have the cohesion of civil courts; they are subdivided, on the one hand, to the ‘ordinary administrative courts’, organized

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in two instances, and on the other hand to the Council of State that remains an administrative court of first and last instance. The two bodies of administrative justice are connected by appeal, but are distinguished by different procedures and separate in principle careers of their judges (judges of ordinary administrative courts may be promoted to the rank of Councilor of the Council of State only to one-fifth of the posts; Art. 88 VI Const. as amended in 2001). Article 20 I Const. includes an important provision, which has not been affected by either amendment. It reads as follows: ‘Every one shall be entitled to legal protection by the courts and may plead before them his views concerning his rights or interests, as specified by law.’ It is true that this general guarantee of judicial protection brings no radical change to the law, since every administrative act could have been challenged before the Council of State under the previous law as well. However, exceptions from this rule, based particularly on the doctrine of the so-called ‘government acts’ (κυβερνητικές πράξεις, kyvernitikes praxeis; state acts), which can also be found in Presidential Decree 18/1989 (Art. 45 V), can no longer be reconciled with Article 20 I Const. 2.

Remedies before the Council of State – The Application for Annulment

Remedies before the Council of State are: (a) the application for annulment of an administrative decision (of an individual character or containing legal rules); (b) the application for substantive judicial review in cases referred to the Council of State by the Constitution or by statute; (c) the appeal on points of law against certain categories of judgments by lower administrative courts; (d) the application for cassation of an administrative court judgment. The application for annulment (αίτηση ακυρώσεως, aitisi akyroseos) is the main remedy before the Council of State. This remedy is patterned after the model of the French recours pour excès de pouvoir, and may challenge both administrative action and failure to act. In the latter case, what is challenged is the implied decision of refusal that is to be inferred after a certain time (as a rule, after three months) from silence on the matter. The application for annulment is admissible under the following conditions: (a) that it is addressed against an individual administrative act or a general, regulatory act (but not a statute or other act of Parliament); (b) that no other judicial remedy is available, or the available ones have been exhausted; (c) that a formal complaint before the administrative authorities, specifically required by law, has already been filed but not answered for at least three months; if the complaint has been dismissed expressis verbis, the dismissing decision may be challenged; (d) that in cases of unlawful failure to act, the authority concerned has been called upon to act and the complaint has been left unanswered for at least three months; if the complaint has been dismissed expressis verbis, the dismissing decision may be challenged;

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(e) that the proceedings have been instituted within 60 days as of the notification of the act to the applicant, or of its publication if the law so provides, or, in the absence thereof, as of the day on which the act came to the knowledge of the applicant, or in case of failure to act, as of the expiry of the three-month period after the authority had been called upon to act; and (f) that the applicant was either the addressee of the contested administrative act, or was affected in his legal (legally relevant) interests by it or by the failure to take it. The application for annulment may assert lack of competence, infringement of an essential procedural requirement, substantive violation of the law, or abuse of discretionary power. If one of these grounds is substantiated, the application is well-founded. A judgment for the applicant declares the contested decision to be null and void erga omnes. However, dismissal of the application does not bar other persons from challenging the same act. Whether favorable or not, a judgment has the force of res judicata, but courts and administrative authorities are only bound by annulling judgments. If the judgment declares a failure to act to be unlawful, it returns the case to the appropriate administrative authority for the necessary measures. The authorities are obliged to take the measures called for by the judgment and/or to refrain from any action declared to be unlawful (Art. 95 V Const.; Art. 50 IV of Presidential Decree 18/1989). A violation of this obligation may lead to disciplinary or even criminal sanctions against the responsible person and may establish state liability. The application for annulment has no suspensive effect. However, a judicial committee may order suspension on request by the applicant, if the committee considers that circumstances invoked by the applicant or the competent public authority so require. The judicial committee may also order any other measure that is appropriate in the given circumstances. While the application for annulment is pending, suspension may also be ordered by the competent minister and, in case of a legal person of public law, its supreme administrative organ (administrative suspension). A special remedy, the ‘application for provisional measures’, is provided for by legislation implementing Community legislation on public contracts. VI.

HUMAN RIGHTS

A.

PROTECTION OF HUMAN RIGHTS

1.

Constitutional Protection

In its first part (Arts 1, 2, and 3), the Constitution assigns to the state the primary obligation to respect and protect the value of the human being (Art. 2 I). In its second part (Arts 4–25), the Constitution defines and protects individual and social rights, such as the right to equality; free development of personality; personal

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freedom; life and corporal integrity; free movement; right to be judged by the judge assigned by law; right to information; sanctuary of home; right to petition; right to assembly; right to associate; freedom of religion; freedom of opinion and press; freedom of art, science, research and teaching; self-government of universities; protection of property; confidentiality of letters and other correspondence; right to judicial protection; protection of the family, marriage, motherhood, childhood, families with many children, the poor and homeless; right to work; trade union freedom; right to strike. The 2001 amendment added some new rights, such as the right of access to information and the right to the protection of personal data, but it mostly introduced new social claims (‘social rights’) regarding the protection of health, of persons with disabilities, and of the natural and cultural environment. Fundamental rights such as the free establishment of political parties and the right to belong thereto (Art. 29) are also guaranteed in other parts of the Constitution. 2.

Protection by the European Convention of Human Rights and Fundamental Freedoms, and other International Conventions

Human rights are also protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, and its Protocols. Greece ratified the ECHR and its First (Additional) Protocol in 1953 (Law 2329/1953) and again, after the restoration of democracy, in 1974 (Law Decree 53/1974, GG A 256). Greece has also ratified Protocols 1, 2, 3, 5, 6, 7, 8, 11, 13 and 1419 and has signed but not yet ratified Protocols 10 and 12 (Protocol 9 has been repealed by Protocol 11). Greece has not yet signed Protocol 4. Thus, the ECHR and its ratified Protocols have become, under Article 28 I Const., ‘an integral part of domestic Greek law’ and ‘prevail over any contrary statutory provision’ (see above, Section I D). By virtue of Article 46 ECHR, Greece has recognized (as of January 30, 1979) the jurisdiction of the European Court of Human Rights. On November 20, 1985, Greece also recognized the right of individuals to petition the European Commission of Human Rights under Article 25 ECHR and later, through the ratification of Protocol 11, the restructured control machinery of the Convention, replacing the Commission and the part-time Court with a full time Court. Greece has also ratified the European Social Charter of 18 October 1961 (Law 1426/1984, GG A 32) and its Protocols (Laws 2422/1996, GG A 144, and 2595/1998, GG A 63), and acceded to the UN International Covenant on Economic, Social and Cultural Rights (Law 1532/1985, GG A 45), as well as to the UN Covenant on Civil and Political Rights (Law 2462/1997, GG A 25). Greece has also ratified the Treaty establishing a Constitution for Europe (Law 3341/2005, GG A 115), which includes as part 2 the Charter of Fundamental 19.

Ratified respectively by Law Decree 215/1974, GG A 365; Law 1705/1987, GG A 89; Law 1841/1989, GG A 94; Law 2400/1996, GG A 96; Law 2610/1998, GG A 110; Law 3289/2004, GG A 227; and Law 3344/2005, GG A 133.

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Rights of the European Union; this Treaty has, however, not been ratified by all Member States of the European Union, and has even been rejected in referendums in France and the Netherlands in 2005, while some of the other Member States have indefinitely postponed ratification. B.

MAIN PROBLEMS RELATING TO THE PROTECTION OF HUMAN RIGHTS IN THE CONSTITUTION

1.

From an Individualistic to a Humanistic Orientation

It is not possible to analyze here each particular human right. The following remarks relate to the general structure and the new features of the protection of human rights in the Constitution. Although it places the human being in the center, this Constitution adopts a less individualistic philosophy than its predecessor of 1952. The humanistic orientation of the present Constitution is expressed mainly in the new non-amendable provision of Article 2 I thereof, which reads as follows: ‘The state has the fundamental duty to respect and protect the dignity of man.’ Article 7 II Const., also new, prohibits the infringement of the dignity of man and provides for its punishment by law. ‘Man’ (meaning also woman) is not just an abstract notion, nor does it relate to the anonymous ‘people’ alone, but also encompasses the concrete individual. However, while the Constitution protects human dignity, it also rejects the individualistic orientation, typical of the 1952 Constitution, through a series of provisions. For the first time, the Constitution includes a provision prohibiting the ‘abusive exercise of rights’ (Art. 25 III) that must be understood as a reference to human rights. Article 25 IV also provides that ‘the state has the right to demand from all citizens to fulfill the duty of social and national solidarity.’ Under the 2001 amendment (Art. 25 I Const.), the (combined) principle of the welfare state under the rule of law (see above, Section II A 6) is guaranteed by the state. 2.

Conflict and Synthesis: Private Ownership and Private Economic Activity

The Constitution guarantees individual freedom, including economic freedom, and private property. At the same time, it rejects the purely individualistic view of human rights in favor of a socially oriented view. Experience indicates that a legal order subordinating the individual to the will of the whole sooner or later ends up sacrificing man to the state. For this reason, the Greek Constitution aims at a synthesis that puts forward the humanistic element and rejects a solely individualistic orientation. According to Article 25 I Const., as amended in 2001, the ‘rights of man as an individual and as a member of society and the principles of the welfare state and rule of law are guaranteed by the state.’ Under Article 25 II Const., ‘the recognition and protection of the fundamental rights of man by the state aims

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at the achievement of social progress in freedom and justice.’ The Constitution does not subjugate the individual to the community. However, in the areas where conflict is likely, the Constitution restricts the rights of the individual in favor of human dignity and the general interest. The areas where this conflict is most likely to occur are private ownership and private economic activity, both of which are protected by the Constitution. Private economic activity is protected expressly for the first time (Art. 5 I Const.), and this protection cannot be amended (Art. 110 I Const.). However, the Constitution also emphasizes the limitations of these rights. According to Article 17 I, ‘the rights resulting from private ownership may not be exercised at the expense of the general interest.’ Moreover, the Constitution establishes, also for the first time, a series of restrictions in favor of the natural and cultural environment and urban and regional planning (Art. 24). The Constitution expands both the content of protected ‘ownership’ and the possibilities of state intervention, as illustrated by the provisions regarding expropriation of undertakings or compulsory participation of the state therein. For the first time, the Constitution recognizes expressly the social aspect of ownership by limiting the owner’s powers (e.g., Arts 18, 24 I, 117 III), and by imposing the duty to tolerate the so-called ‘statutory social restraints’, i.e. government regulations that may be burdensome or economically damaging, but socially necessary (e.g., Arts 17 VII, 24 III). In general, the Constitution emphasizes the social role of ownership by limiting the framework within which protection is provided. This restriction of the individualistic element results either from direct provisions of the Constitution or, usually, from constitutionally authorized statutory provisions. The scope of the constitutional protection of ownership is thus being considerably limited, and may be limited even further by the legislature whenever so permitted by the Constitution (e.g., Art. 25 IV). Protection of private economic activity is viewed as an incident of the right to develop one’s personality. However, this protection may not exceed the limits set by the rights of others, the Constitution, or the boni mores (Art. 5 I Const.). Article 106 II Const. is equally important and reflects the same rejection of individualism. Under this provision, ‘private economic initiative shall not be permitted to develop at the expense of freedom and human dignity or to the detriment of the national economy.’ 3.

Summary

In the area of human rights, the Constitution differs in two main respects from its predecessor. First, because of the experience during the dictatorship, the Constitution explicitly guarantees human dignity and emphasizes the rights of man vis-à-vis the state; second, influenced by the social trends of our time, the Constitution expressly provides for social restraints on human rights, and in particular of private ownership and economic freedom. Both the guarantee of and the social restraints on human rights are legally binding. This also applies to the principle of equality, as unanimously accepted by legal doctrine and the courts.

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JUDICIAL PROTECTION

The legally binding force of human rights manifests itself in their judicial protection. Greek courts have the power to review the constitutionality of laws, as well as the constitutionality and legality of secondary legislation. Legal rules and individual administrative acts issued by administrative authorities may be annulled by the administrative courts on the ground of ‘violation of law’ (Art. 95 I Const.), a notion that also includes the infringement of the Constitution, as well as Community law and international law rules, valid in Greece under Article 28 I Const. Acts of Parliament may not be challenged directly, but their unconstitutionality may be asserted before the courts and may lead to their non-application. Under Article 87 II Const., judges are ‘in no way required to obey provisions enacted in violation of the Constitution.’ Even in an ordinary case, ‘the courts are obliged not to apply a law the contents of which are contrary to the Constitution’ (Art. 93 IV Const.). However, the courts cannot annul such law. Greek law does not recognize a general duty to refer the question of constitutionality to a supreme court. The Supreme Special Court (see above, Section II B 6) has no monopoly in declaring a law unconstitutional. This court is empowered to adjudicate ‘disputes on the substantive constitutionality or the meaning of provisions of a formal law’, but only in case of ‘conflicting judgments of the Council of State, Areios Pagos, or the Court of Audit’ (Art. 100 I Const.). BIBLIOGRAPHY (in English, French, and German) A.

BOOKS

N. Alivizatos, Les institutions politiques de la Grèce à travers les crises 1922– 1974 (Paris, 1979). Ch. Choidas, Die rechtliche Natur und Bedeutung der Grundrechte mit besonderer Berücksichtigung der staatsrechtlichen Verhältnisse im Königreich Griechenland (Leipzig, 1914). Sp. Karalis, Le contentieux administratif en Grèce (Athens-Brussels, 1999). K. Mavrias, Transition démocratique et changement constitutionnel en Europe du Sud: Espagne, Grèce, Portugal (Athens, 1997). A. Pantelis, Les grands problèmes de la nouvelle constitution hellénique (Paris, 1979). A. Pantelis and St. Koutsoubinas, L’ évolution des régimes électoraux en Grèce (Athens, 1998). N.N. Saripolos, Das Staatsrecht des Königreichs Griechenland (Tübingen, 1909). E. Spiliotopoulos and A. Makrydimitris, Administration publique en Grèce (Athens, 2001).

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E. Spiliotopoulos and A. Makrydimitris, Public Administration in Greece (Athens, 2001). E. Spiliotopoulos, Hellenic Administrative Law (Athens-Brussels, 2003). E. Spiliotopoulos, Droit administratif hellénique, (2nd edn, Athens-Brussels, 2004). Ph. Spyropoulos, Die Beziehungen zwischen Staat und Kirche in Griechenland (Athens, 1981). Ph. Spyropoulos, Constitutional Law in Hellas (The Hague-London-Boston, 1995). M. Stassinopoulos, Traité des actes administratifs (Athens-Paris, 1958). D. Tsatsos, Die neue griechische Verfassung. Parlamentarische Ohnmacht statt demokratischer Kontrolle (Heidelberg, 1980). B.

ARTICLES AND OTHER PUBLICATIONS

D. Corsos, ‘Die Organisation der Verwaltung und die Rechtsstellung der Beamten nach der griechischen Verfassung von 1975’ in Öffentlicher Dienst. Festschrift für Carl Hermann Ule zum 70. Geburtstag (Köln, 1977) 529–541. P.D. Dagtoglou, ‘Die Verfassungsentwicklung in Griechenland von der Einführung der geltenden Verfassung bis zum Tode König Pauls’, JöR N.F. 14 (1965) 381–408. P.D. Dagtoglou, ‘Verfassung und Verwaltung’ in Südosteuropa-Handbuch, vol. III: Griechenland, K.-D. Grothusen (ed.) (Göttingen, 1980) 13–53. P.D. Dagtoglou, ‘Die griechische Verfassung von 1975. Eine Einführung’, JöR N.F. 32 (1983) 355–393. P.D. Dagtoglou, ‘Die Verfassungsgerichtsbarkeit in Griechenland’, in Verfassungsgerichtsbarkeit in Westeuropa, C. Starck, A. Weber (eds) (BadenBaden, 1986) 363–392. P.D. Dagtoglou, ‘Ausgestaltung und Probleme der griechischen Verwaltung’ in Zwischen Zentralisierung und Selbstverwaltung, F. Ronneberger (ed.) (Munich, 1988). P.D. Dagtoglou, ‘Der Missbrauch von Grundrechten in der griechischen Theorie und Praxis’ in Der Missbrauch von Grundrechten in der Demokratie, J. Iliopoulos-Strangas (ed.) (Baden-Baden, 1989). P.D. Dagtoglou, ‘The Judicial Review of Constitutionality of Laws’, European Review of Public Law 1 (1989) 309–328. P.-M. Efstratiou, ‘Die Verordnungsgebung in der Verfassung der III. griechischen Republik von 1975/1986. Zugleich eine Studie zur verfassungsrechtlichen Stellung der Exekutive innerhalb der Staatsgewalten in der republikanischen parlamentarischen Demokratie Griechenlands’, JöR N.F. 39 (1990) 495– 535. P.-M. Efstratiou, ‘Landesbericht Griechenland’ in Grundgesetz und deutsche Verfassungsrechtsprechung im Spiegel ausländischer Verfassungsentwicklung, C. Starck (ed.) (Baden-Baden, 1990) 119–169.

Constitutional and Administrative Law

63

P.-M. Efstratiou, ‘Die gerichtliche Kontrolle administrativer Entscheidungen im Griechischen Bau-, Umwelt- und Wirtschaftsverwaltungsrecht’ in Das Ausmaß der gerichtlichen Kontrolle im Wirtschaftsverwaltungs- und Umweltrecht, Jürgen Schwarze and E. Schmidt Assmann (eds) (Baden-Baden, 1992). P.-M. Efstratiou and N. I. Sakellariou, ‘Greece’ in Towards a Unified Judicial Protection of Citizens in Europe?, E. Spiliotopoulos (ed.) (London, 2000). J. Iliopoulos-Strangas, ‘Grundrechtsschutz in Griechenland’, JöR N.F. 32 (1983) 395–442. J. Iliopoulos-Strangas, ‘Bedrohung und Verteidigung der Demokratie – Ein rechtsvergleichender einführender Überblick’ in Der Missbrauch von Grundrechten in der Demokratie, J. Iliopoulos-Strangas (ed.) (Baden-Baden, 1989). J. Iliopoulos-Strangas, ‘Der Einfluss des Grundgesetzes auf die griechische Verfassung’ in 40 Jahre Grundgesetz. Entstehung, Bewährung und internationale Ausstrahlung (München, 1990). J. Iliopoulos-Strangas, ‘Der Schutz der sozialen Grundrechte in der griechischen Rechtsordnung’ in Soziale Grundrechte in der Europäischen Union, Bundesministerium für Arbeit und Sozialordnung – Max-Planck-Institut für ausländisches und internationales Sozialrecht – Akademie der Diözese Rottenburg Stuttgart (eds) (Baden-Baden, 2000–2001) 149–158. J. Iliopoulos-Strangas, ‘La Constitution grecque et les élections’, Annuaire International de Justice Constitutionnelle XIX (2003) 179–199. J. Iliopoulos-Strangas unter Mitarbeit von S. Koutnatzis, ‘Impulse aus dem griechischen Verfassungsrecht für den europäischen Grundrechtsschutz’ in Kölner Gemeinschaftskommentar zur Europäischen Grundrechte Charta, P. Tettinger and K. Stern (eds) (München, 2006). N. Kaltsogia-Tournaviti, ‘Greece: The Struggle for Democracy. Constitutional and Political Evolutions since 1964’, JöR N.F. 32 (1983) 297–353. N.K. Klamaris and P.-M. Efstratiou, ‘Access to Justice as a Fundamental Right’, RHDI 51 (1998) 291–310. E. Kyriacopoulos, ‘Der Staatsrat in Griechenland’, JöR N.F. 14 (1965), 409–423. G. Papadimitriou, ‘Die Grundrechte der neuen griechischen Verfassung’, Europäische Grundrechte-Zeitschrift 3 (1976) 150–155. E. Spiliotopoulos, ‘Judicial Review of Legislative Acts in Greece’, Temple Law Quarterly 56 (1983) 463–502. M. Stathopoulos, ‘Reviewing the Constitutionality of Laws’, European Review of Public Law 3 (1991) 87–123. See also the chronicles on Greek constitutional law by A. Pantelis, and on Greek administrative law by G. Sioutis published regularly in European Review of Public Law and in Annuaire européen d’ administration publique.

64 C.

Prodromos D. Dagtoglou TEXTBOOKS OF CONSTITUTIONAL LAW, ADMINISTRATIVE LAW AND ADMINISTRATIVE COURTS PROCEDURE IN GREEK PUBLISHED SINCE 2000

K. Chryssogonos, Constitutional Law (Athens-Thessaloniki, 2003). K. Chryssogonos, Individual and Social Rights (3rd edn, Athens, 2006). P.D. Dagtoglou, Administrative Courts Procedure (3rd edn, updated by P. Lazaratos and Th. Papageorgiou, Athens-Komotini, 2004). P.D. Dagtoglou, General Administrative Law (5th edn, updated by P.-M.Efstratiou, Athens-Komotini, 2004). P.D. Dagtoglou, Constitutional Law. Human Rights, vols I and II (2nd edn, Athens-Komotini, 2005). Ap. Gerontas, S. Lytras, P. Pavlopoulos, Gl. Sioutis and S. Flogaitis, Administrative Law (Athens-Komotini, 2004). A. Manitakis, Greek Constitutional Law, vol. I (Athens-Thessaloniki, 2004). K. Mavrias, Constitutional Law (4th edn, Athens-Komotini, 2005). A. Pantelis, Constitutional Law (Athens, 2005). E. Spiliotopoulos, Greek Administrative Law (11th edn, Athens-Komitini, 2005). Ph. Spyropoulos, Introduction to Constitutional Law (Athens, 2006). A. Tahos, Greek Administrative Law (8th edn, Athens-Thessaloniki, 2005).

Chapter 4

Application of Community Law in Greece Vassilios A. Christianos*

I.

INTRODUCTION

Greece has been a full member of the European Communities1 since January 1, 1981. The EEC Treaty and the Act of Accession of the Hellenic Republic to the * Ass. Professor of Law, University of Athens. 1. Originally, three European Communities were set up: the European Coal and Steel Community (ECSC) set up by the Treaty of Paris of April 18, 1951, the European Atomic Energy Community (EURATOM) and the European Economic Community (EEC), set up by the Treaties of Rome of March 25, 1957. The Member States set about removing trade barriers between them and forming a ‘common market’. In 1992, the Treaty on the European Union (Treaty of Maastricht; OJ C 325/33–184, 2002 [consolidated version]) changed the name of the EEC to simply ‘the European Community’ (EC). It also introduced new forms of cooperation between member-state governments, e.g. on defense, and in the area of ‘justice and home affairs’. By adding this intergovernmental cooperation to the existing ‘Community’ system, the Maastricht Treaty created the European Union (EU). The new structure is political as well as economic and is divided into three main areas called ‘pillars’: the first – ‘Community’ – pillar, containing the three European Communities, concerns economic, social, and environmental policies. In 2002, the ECSC ceased to exist upon expiration of the Treaty of Paris. The second – ‘Common Foreign and Security Policy’

Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 65–77. © 2008, Kluwer Law International BV, The Netherlands.

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European Communities of May 28, 1979 were ratified by Law 945/1979 (GG A 170), which incorporated the parliamentary approval to the EEC Treaty and regulated the implementation of the acquis communautaire. Since then, the Greek legal order has been greatly influenced by Community law. Rules provided for by the successive Treaties2 and directives or regulations of the Council or the Commission play an important role in Greek law, either by becoming an integral part of the Greek legal system through the enactment of Community legislation and through court decisions, or by influencing it towards the goal of harmonization of laws of Member States. In general, the reception of Community law in Greece has been successful. Although usually integrated by particular statutes (see below, under II), the effective application of Community law has been further guaranteed by Greek court decisions (see below, Section III). II.

INTRODUCTION OF COMMUNITY LAW INTO THE GREEK LEGAL ORDER: RECOGNITION OF ITS PARTICULAR STATUS

Following the decisions of the European Court of Justice (ECJ), application of Community law in Greece, as in all Member States, is governed by two fundamental principles: supremacy of Community law over national law (see below, under A) and direct applicability and direct effect within the Greek legal order (see below, under B). A.

SUPREMACY OF COMMUNITY LAW

While supremacy of Community law over Greek statutory law is expressly provided by the Constitution (see below, under 1), the question of supremacy over the Constitution is still rather ambiguous (see below, under 2).

(CFSP) – pillar concerns foreign policy and military matters, while the third – ‘Police and Judicial Co-operation in Criminal Matters’ (PJCC) – pillar concerns cooperation in the fight against crime. This pillar was originally named ‘Justice and Home Affairs’. In 1997, the Amsterdam Treaty (OJ C 340/1–144, 1997) transferred areas such as the policy on asylum, migration, and judicial cooperation in civil matters from the third pillar to the ‘Community’ pillar and the third pillar was renamed. The term ‘Justice and Home Affairs’ is still used to cover both the third pillar and the transferred areas. In 2001, the Treaty of Nice (OJ C 80/1–87, 2001) laid down new rules governing the EU institutions so that the Union could function efficiently following its enlargement to 25 Member States. The new EU Constitution (OJ C 310/1–474, 2004) – if ratified by all Member States (see Ch. 3, Section I E in f.) – aims to replace all the existing Treaties with a single text and to unify the operations of the EU. As such the EC is to be fully absorbed into the EU and the three pillars are to be merged into a single structure. 2. Mainly the EC and EU Treaties (OJ C 325/33–184, 2002 [consolidated version] and the Treaty of Maastricht, above ftn 1, respectively).

Application of Community Law in Greece 1.

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Constitutional Foundations of Community Law Supremacy

Since the early steps of accession, Greek courts have demonstrated a rather receptive attitude towards Community law and have founded its supremacy on Article 28 of the Constitution. According to Article 28 I Const., [t]he generally recognized rules of international law, as well as international treaties, shall be an integral part of Greek domestic law from the date of their implementation into law and their entry into force according to their own conditions, and shall prevail over any contrary provision of the law. Moreover, Article 28 II Const. provides that: Authorities provided by the Constitution may by treaty or agreement be vested in agencies of international organizations, when this serves an important national interest and promotes cooperation with other States. There was much doctrinal controversy as to which exactly of the above constitutional provisions should be considered as the basic norm linking Greece with the Community legal order. Under Greek court decisions, supremacy of treaties and secondary Community legislation adopted prior to the date of accession of Greece to the European Communities, is usually founded on Article 28 I Const.;3 while, as regards secondary Community law adopted subsequently, supremacy thereof rests upon Article 28 II Const. However, in many cases, Greek courts refer to Article 28 as a whole. Thus, in SE 4190/1983,4 the Council of State ruled that all provisions of the Act of Accession and of the three Founding Treaties, as amended, ‘constitute part of the Greek legal order and shall prevail, in consideration of Article 28 of the Constitution, over any conflicting legislative provision.’5 A further example is provided by SE (full bench) 2152/1986,6 holding that, as a result of supremacy of Community law founded on Article 28 Const., conflicting provisions of national legislation are not applicable, without even the need for them to be repealed. As regards the foundations of such supremacy, Greek courts have followed a different approach than the European Court of Justice. By founding it on a legal basis within the national legal order and not, as the ECJ declared, on the ‘nature and specificity of the Community’s legal order,’7 Greek courts have adopted a ‘dualist’ approach to the relationship between national and Community law. 3. 4. 5.

6. 7.

See for example AP 657/1992, EErg.D 52 (1993) 247–252; AP 658/1992, Hell.Dni 34 (1993) 355–359. Hell.Dni 25 (1984) 618. The sole known exception to the unanimous acceptance of Community law supremacy is DP (Piraeus) 1095/1983, EEEur.D 5 (1985) 199–201, where the court declined to recognize that Article 95 of the EEC Treaty prevails over domestic fiscal law anterior to the accession of Greece to the European Communities. Harm. 41 (1987) 330–331. See for example Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Case No. 11/70 [1970] ECR 1125.

68 2.

Vassilios A. Christianos A Relative Supremacy of Community Law over the Constitution?

The Constitution provides nothing on its institutional relationship with Community law in the event of a potential conflict. Although such supremacy of Community law is a standard feature of ECJ decisions,8 neither the Council of State nor Areios Pagos have expressly recognized it. This background influenced, in its turn, the decisions rendered by the Council of State. Indeed, in SE 3502/19949 and 249/1997,10 the court held that Community law prevails even over the Constitution.11 However, subsequently the full bench of the Council of State followed a different approach and completely refrained from examining the question of incompatibility of the Constitution to Community law in relation to the disputes (SE 1545/199512 and 4674/199813). Thus, the Council of State avoided resolving the question. B.

DIRECT EFFECT AND APPLICABILITY:14 THE REMOVAL OF INTERNAL BARRIERS TO THE EFFECTIVE INSERTION OF COMMUNITY LAW IN THE GREEK LEGAL ORDER

1.

Direct Effect of Primary Community Law

In Van Gend & Loos,15 the European Court of Justice stated that a Treaty provision is immediately applicable if it is ‘clear and unconditional’ and ‘not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law’. Right after 8. Ibid.; see also Costa v. ENEL, Case No. 6/64 [1964] ECR 585. 9. ToS 21 (1995) 891–896. 10. DEE 3 (1997) 327–331. 11. Supremacy of Community law over the Constitution has also been recognized by two judgments of the civil courts, which, however, have not been influential: CA (Athens) 9162/1992, Hell.Dni 34 (1993) 403–407 and MP (Athens) 321/2004, , June 6, 2006. 12. ToS 21 (1995) 897–904. 13. ToS 25 (1999) 106–117. 14. In summary, direct applicability means that the legal acts do not have to be transposed into national law, but confer rights or impose duties on the Community citizen in the same way as national law. The Member States and their governing institutions and courts are bound directly by Community law and have to comply with it in the same way as with national law. On the other hand the concept of ‘direct effect’ is a device used by the ECJ to enable a citizen to use Community law for his personal advantage. Direct effect does not mean that the provision becomes part of national law. It means that it can create rights upon which individuals may rely before their domestic courts. For further information see J.A Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law’, CMLR 9 (1972) 425–438. 15. NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Nederlandse Administratie der Belastingen, Case No. 26/62 [1963] ECR 3.

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the accession of Greece, the courts adopted without hesitation the acquis stated by ECJ judgments concerning direct applicability and direct effect of primary Community law. Thus MP (Piraeus) 556/198116 stated: Articles 85 and 86 of the EEC Treaty have been held by the Court of Justice in Cases 13/61, Bosch, 127/73, BRT/SABAM and 155/73, Sacchi, as directly applicable, i.e., they produce their effects without any intervention of the national legislator or any other internal procedure, and the citizens of the Member States have been granted the right to invoke the application of these provisions in the national courts [. . .]. Since then, Greek courts have consistently confirmed this position. 2.

Direct Applicability of Regulations

As regards regulations,17 Greek courts have followed the same approach by recognizing quite early on their direct applicability.18 Furthermore, by following CA (Athens) 8971/198519 and SE 3312/1989,20 the courts have recognized the State’s civil liability on account of violation of regulations. 3.

Direct Effect of Directives

Although the position of directives under the Treaty is rather different from that of the EC Treaty provisions and regulations, the courts have accepted, generally speaking, their direct effect almost without resistance, under the conditions set by the ECJ. (a)

Specific Character of Directives

Under Article 249 (ex Art. 189) of the EC Treaty, a directive ‘[s]hall be binding only as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.’ A directive may well leave more or less room for discretion to the Member States; however, it will require further implementing measures, and since it might only set out its aim in general terms, it may not be sufficiently precise to allow for proper national implementation and judicial review. At first sight, directives do not seem to fulfill the conditions set up by the ECJ for the direct effect of EC Treaty provisions as decided in Van Gend en Loos (see above, 1), since their implementation by specific national measures is envisaged and considered necessary by the EC Treaty. However, the ECJ declared directives to be capable of producing a direct 16. NoB 30 (1982) 499–501. 17. According to Article 249 (ex Art. 189) of the EC Treaty, regulations are binding and directly applicable. 18. See for example DE (Athens) 2343/1987, EDKA 30 (1988) 110–111. 19. Hell.Dni 27 (1986) 137–140. 20. NoB 38 (1990) 509–514; on this case see below in this Section and ftn. 25.

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effect, even in cases when a Member State has not adopted the implementing measures required within the periods prescribed by the directive, to the extent that the provision in question is unconditional and sufficiently precise.21 (b)

Reception of ECJ Decisions by Greek Courts

Although Greek courts were not hostile to the direct effect of directives, the first decisions were rendered as late as 1987.22 CA (Athens) 2184/198723 demonstrates the initial difficulty encountered by Greek judges in applying ECJ cases. In this judgment, the Court of Appeals, without considering the ECJ, held that Directive 77/185,24 relating to the safeguarding of employees’ rights in the event of transfer of undertakings, businesses or part of businesses, which had not yet been transposed into the Greek legal order, did not produce a direct effect because no implementing measures had been adopted by the State. With the exception of the above-mentioned example, the courts adapted their decisions to the requirements of ECJ decisions without problem. For instance, SE 3312/198925 ruled that if a directive has not been transposed into the Greek legal order within the prescribed period or has not been implemented correctly, it could still be invoked by an individual against any conflicting provision of national law.26 4.

Law 1338/1983 Providing the Incorporation of Secondary Community Law in the Greek Legal Order

Articles 1 and 4 of Law 1338/1983 on the application of Community law enable the executive power to take any appropriate measures for the correct application of Community law provisions. Since most EC Treaty provisions and Community regulations are directly applicable, Law 1338/1983 has been of much higher relevance in relation to Community directives that need to be transposed in the national legal order in order to be fully implemented.

21. 22. 23. 24. 25.

26.

Van Duyn v. Home Office, Case 41/74 [1974] ECR 1337; Pubblico Ministero v. Tullio Ratti, Case 148/78 [1979] ECR 1629; Marshall v. Southampton and South-West Hampshire Area Health Authority, Case 152/84 [1986] ECR 723. DP (Athens) 12912/1987, EDKA 30 (1988) 248–250. Harm. 41 (1987) 953–956. OJ L 61/26–28, 1977. SE 3312/1989 (also known as the Karellas case; see ftn. 20 above) concerned the applicability and interpretation of Articles 25, 41, and 42 of the Second Council Directive 77/91 of December 13, 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, OJ L 26/1–13, 1977. Greek courts have consistently confirmed this position: see for example CA (Athens) 9162/1992, ftn. 11 above, and SE 3977/2003, NoB 53 (2005) 343–358.

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On the basis of this enactment, the bulk of measures on the implementation of directives have the form of presidential decrees, i.e. administrative acts of legislative character (see Ch. 3, Section II B 3). It should be noted that presidential decrees are submitted in draft form to a special panel of the Council of State (see Ch. 3, Section II B 3), which issues an opinion on their conformity to the enabling statutory delegation. In the years following accession to the European Communities, this procedure has offered the opportunity to the Council of State to elaborate on the basic principles of Community law, such as the rule of supremacy, direct applicability of regulations, etc. Parliament intervenes in the process of transposition of directives only when the subject matter thereof requires, according to the Constitution, the adoption of a legislative act (e.g., legislation dealing with tax matters, VAT Directive). The limited participation of Parliament in the transposition process is explained by the fact that the enactment of a legislative act is a long and complex procedure, and this would delay the implementation of the directive. In the past, failure by Greece to transpose Community law resulted in an infringement procedure before the ECJ (Art. 226, ex Art. 169 of the EC Treaty), which led the court to recognize that Greece had not fulfilled its obligations under Community law.27 III.

JUDICIAL APPLICATION OF COMMUNITY LAW IN GREECE: THE GUARANTEE OF COMMUNITY LAW EFFECTIVENESS

As cooperation between Greek courts and the ECJ allows for a uniform and effective application of Community law (see below, under A), the courts themselves have been, in general, quite willing to give effect to the European Court decisions (see below, under B). A.

COOPERATION BETWEEN GREEK JUDGES AND THE ECJ

1.

Preliminary Reference of Article 234 EC Treaty: The Basis of Cooperation

While the European Court of Justice is the supreme guardian of Community legality, Greek courts are the first guarantors of Community law effectiveness within the national legal order. 27.

See for example Commission v. Hellenic Republic, Case No. C-53/88 [1990] ECR I-3917. In some cases the Hellenic Republic adopted the measures required to comply with the provisions of the directive after the Commission had brought the proceedings. Therefore, in such cases the Commission decided to discontinue its application and the case was removed from the register of the Court. See for example, Commission v. Hellenic Republic, Case No. C-4/85 [1987] ECR 4383 and Commission v. Hellenic Republic, Case No. C-132/85 [1987] ECR 5293.

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To ensure the uniform and effective application of Community legislation and to prevent divergent interpretations, Article 234 (ex Art. 177) of the EC Treaty provides that any national court or tribunal may refer a question to the ECJ on the interpretation or validity of a rule of Community law, if it considers it necessary to do so in order to resolve a dispute brought before it. However, courts or tribunals issuing decisions for which no judicial remedy exists under national law are required, as a rule, to refer such question to the ECJ. According to the latter28 a preliminary reference is not necessary: (a) when the answer to such reference can in no way affect the outcome of the case; (b) when the ECJ has already ruled on the point; or (c) when the correct interpretation of the Community law rule is obvious, leaving no room for reasonable doubt. In Greece, the first preliminary reference was made five years after the accession to the European Communities by CA (Athens) 8777/1985,29 subsequently followed by SE (full bench) 2605/1986,30 PP (Athens) 5737/198631 and 7097/1986,32 as well as AP 1124/1986.33 According to ECJ statistics, 92 requests for preliminary rulings were filed by Greek courts from 1981 to 2004. There is a noteworthy growth in the number of preliminary rulings requested by Greek Courts in 1987, 1995, and 2004. Out of the 92 cases34 referred to the ECJ, four were referred by Areios Pagos, 21 by the Council of State, and 67 by other courts or tribunals. Thus, references have been made by all Greek supreme courts apart from the Supreme Special Court.35 Although there are some negative examples where Greek judges declined to refer to the ECJ,36 the courts have in general demonstrated a rather positive attitude towards preliminary references, some of them having led to important rulings concerning the establishment or development of the European legal system. For example, following referral by the Administrative Court of Appeal of Athens, the ECJ ruling in Evrenopoulos37 made an important interpretation on the 28. 29.

30. 31. 32. 33. 34.

35. 36. 37.

Da Costa en Schaake NV and others v. Administratie der Belastingen, Case No. 28/62 [1963] ECR 61; CILFIT v. Ministero della Sanità, Case No. 283/81 [1982] ECR 3415. NoB 34 (1986) 83–84; this first preliminary reference concerned the concept of force majeure as a ground for canceling an export contract and claiming back the export guarantee under Commission Regulation No. 3183/1980 of December 3, 1980 laying down common detailed rules for the application of the system of import and export licenses and advance fixing certificates for agricultural products, OJ L 338/1–33, 1980. NoB 35 (1987) 426–427. EEEur.D 7 (1987) 121–123 = NoB 36 (1988) 1145–1146. EEEur.D 7 (1987) 123–129. NoB 36 (1988) 1143–1144. In particular, two preliminary rulings were requested in 1986, 17 in 1987, none in 1988, two in 1989, two in 1990, three in 1991, one in 1992, five in 1993, none in 1994, ten in 1995, four in 1996, two in 1997, five in 1998, three in 1999, three in 2000, four in 2001, seven in 2002, four in 2003, and 18 in 2004. The Supreme Special Court (Art. 100 Const.) has jurisdiction to settle conflicts between the supreme courts. See Ch. 3, Section II B 6. See below, under 2. Dimossia Epicheirissi Ilektrismou (DEI) v. Efthimios Evrenopoulos, Case No. C-147/95 [1997] ECR I-2057.

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applicability of Article 141 (ex Art. 119) of the EC Treaty to occupational pension schemes. In Evrenopoulos, the ECJ held that a pension scheme particular to a state body, such as the state-owned electricity company, falls within the scope of Article 141 (ex Art. 119) of the EC Treaty and is therefore subject to the prohibition of sex discrimination laid down therein. Consequently, where a survivor’s pension falls within the definition of pay for the purposes of Article 141, this Article precludes the application of a provision of national law which makes the award of such a pension to a widower subject to special conditions which are not applied to widows. The above ECJ ruling was subsequently followed by SE 2704/200138 and 1312/2002.39 A further example is provided by Diamantis,40 following referral by the Court of First Instance of Athens. The request concerned the rights of shareholders in capital increase operations under Directive 77/9141 and on the abusive exercise of a right arising from a Community law provision. According to the ECJ, Community law does not preclude national courts from applying a provision of national law. This enables them to determine whether a right deriving from a Community law provision is abused, if, out of all remedies available in a situation that has arisen in breach of that provision, a shareholder has chosen one that will cause such serious damage to the legitimate interests of others that it appears manifestly disproportionate. 2.

The ECJ and Greek Courts: Conflict or Cooperation?

Generally speaking, Greek courts have been less reluctant than courts in other countries to acknowledge the European Court’s authority.42 In France, for example, the acte clair doctrine has for a long time been used by the French Council of State to avoid submission of preliminary references to the European Court of Justice. In Greece, although the acte clair doctrine has not been expressly invoked, its influence is evident as, in several cases, the courts considered that there was no duty to refer a question to the ECJ. The grounds of this failure to refer were either that no violation of Community law has been noted,43 or that Community law was not applicable in the case,44 or that the correct application of Community law was 38. 39. 40.

DD 14 (2002) 1511–1515. , June 6, 2006. Dionysios Diamantis v. Elliniko Dimosio (Greek State), Case No. C-373/97 [2000] ECR I-1705. 41. Second Council Directive 77/91; see above, ftn. 25. 42. It is perhaps noteworthy that a restriction concerning preliminary rulings was provided by Law 1470/1984, according to which a Council of State panel deciding to make a preliminary reference should first bring the case before the full bench of the same Court, the latter being solely competent to submit the reference. Fortunately, this Law was subsequently repealed by Law 1738/1987. 43. SE 815/1984, NoB 32 (1984) 925–930. 44. DP (Athens) 1780/1985, Hell.Dni 26 (1985) 1397–1405.

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so obvious as to leave no room for any reasonable doubt.45 In reality, this attitude of the courts constitutes an attempt to avoid the application of Community law in some specific legal fields that are sensitive from a national point of view. A noteworthy example is provided by SE (full bench) 3457/1998.46 Despite a dissenting opinion, the Council of State declined to make a preliminary request (or avoided doing so) in a case related to an administrative body competent for the recognition of degrees originating from universities of other Member States. This public body refused to provide such recognition when some of the teaching periods had been carried out in Greece on satellite campuses of these universities. In the particular case, Article 16 Const., providing that only legal persons subject to public law and acting under state control may provide higher education and forbidding the creation of higher education establishments by private persons, appears in conflict with Directive 89/48 on mutual recognition of higher-education diplomas,47 as well as with Articles 40 (ex Art. 49), 47 (ex Art. 57) and 55 (ex Art. 66) of the EC Treaty. Instead of resolving the conflict by referring to the ECJ, the Council of State followed a different approach. The refusal of the above administrative body to recognize the degree in question was upheld solely on the basis of Article 149 (ex Art. 126) of the EC Treaty, thus avoiding the question of supremacy of Community law over the Constitution. The Council of State further held that, by guaranteeing the cultural and linguistic diversity of Member States, Article 149 (ex Art. 126) excludes education and the organization of education systems from the sphere of Community competence, and thereby justifies the possible barriers on the free movement of persons and capital and the free provision of services. Thus, the court considered that Directive 89/48 and the above-mentioned Articles of the EC Treaty were not relevant and saw no reason in requesting a preliminary ruling from the ECJ. Another example is provided by SE (full bench) 4674/1998.48 Without referring to the European Court of Justice, the court held that the Community provisions on the free movement of persons are irrelevant in a situation where a Greek citizen is prohibited from leaving the country because of his quality as a debtor of the state. This, despite the fact that, in reality, the case fell well within the scope of application of Community law governing the free movement of persons. B.

GREEK CASES: EXTENSIVE COMPLIANCE WITH THE ECJ

The national judge has nowadays become the judge of general jurisdiction of Community law; the application of ECJ decisions is a part of his day-to-day 45. AP (full bench) 39/1990, Hell.Dni 32 (1991) 739–742. 46. NoB 47 (1999) 1019–1032. 47. Council Directive 89/48 of December 21, 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ education, OJ L 19/16–23, 1989. 48. See above, ftn. 13.

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activity. This statement is reaffirmed in relation to the Greek judge, since major judgments of the European Court of Justice, such as Van Duyn and Van Gend en Loos, have been consistently followed by the Greek courts. Furthermore, Community principles developed by the ECJ are applied by the Greek courts. For example, SE 2245/1999 was the first judgment to apply the Community principle of proportionality in assessing the level of an administrative fine.49 The Council of State cited Commission v. Hellenic Republic,50 and held that administrative penalties imposed for infringement of customs legislation should not exceed what is strictly necessary to accomplish the aim pursued, and that disproportionate penalties represented a barrier to the exercise of Community freedoms. On the ground that the Administrative Court of Appeal of Athens had not made such an assessment on proportionality, the court partly reversed the judgment, which had found the level of the contested fine to be lawful. Moreover, Greek courts have in several occasions declared that the interpretation of national law should be made in light of Community law,51 following ECJ decisions.52 At times, domestic courts apply ECJ decisions or Community legislation without explicitly referring thereto. SSC 3/200153 settled the long-running conflict between Areios Pagos on the one hand and, on the other hand, the Council of State and the Court of Auditors on whether marriage allowances were a component of remuneration if they constituted a special allowance to help defray household costs.54 Although the Supreme Special Court judgment was not founded on Article 141 (ex Art. 119) of the EC Treaty, which is normally applicable in the case, it was nevertheless aligned with ECJ decisions in remuneration matters, holding that the above-mentioned allowances constituted a remuneration. In general, Greek citizens often invoke Community law as a basis for their claims before the national courts. After having recognized the applicability of Community law in the Greek legal order, the Council of State has gone even further by adopting the ECJ decisions in Verholen.55 Indeed, SE 249/199756 held that,

49. NoB 48 I (2000) 716–719. The applicants had infringed the Customs Code by declaring a value lower than the true value of French goods appearing on invoices submitted at the time of importation. They were subsequently fined with a sum equal to three times the value of tax they would have paid had they declared the true value. 50. Commission of the European Communities v. Hellenic Republic, Case No. C-210/91 [1992] ECR I-6735. 51. See for example AP 1360/1992, EErg.D 52 (1993) 32–36. 52. Von Colson and Kamann v. Land Nordrhein-Westfalen, Case No. 14/83 [1984] ECR 1891; Marleasing v. Comercial Internacional de Alimentacion, Case No. C-106/89 [1990] ECR I-4135. 53. Arch.N 52 (2001) 168–170. 54. Had the allowances been described as ‘remuneration’, they would have to be paid separately to each of the two spouses. In the opposite case, they would have to be paid just once, either wholly to one spouse or by a 50 per cent ratio to each. 55. Verholen and others v. Sociale Verzekeringsbank Amsterdam, Case No. C-87/90 [1991] ECR I-3757. 56. See above, ftn. 10.

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according to European Court decisions,57 domestic courts may examine on their own motion the compatibility of national law with Community law. However, although Greek courts have been very receptive towards ECJ decisions, Francovich58 is not yet fully integrated into the Greek legal order. SE 2079/199959 concerning the defective transposition of Directive 89/4860 did not apply Francovich, even though the appellant had pleaded the State’s civil liability in respect of the defective transposition of the Directive, and that even after the ECJ had passed judgment against Greece for failing to fulfill its obligations.61 Although the Council of State recognized the obligation of the State to transpose the directive, it held that it is for the legislature and the executive to choose the appropriate legal vehicle of discharging that obligation. It furthermore concluded that the judiciary has no jurisdiction to intervene in the matter by recognizing the civil liability of the State for infringement of Community obligations. It is readily apparent that national courts still set some limits to Community law effectiveness. BIBLIOGRAPHICAL REFERENCES A.

BOOKS AND STUDIES

1.

In Greek

K. Kakouris, Perspectives of European Community Law, General Theory of Law, Post-Judicial Domain (Athens, 1998). P. Naskou-Perraki and A. Koutsouflianioti, Preliminary Rulings of Greek Courts before the ECJ. Collection of Case Law 1985–2003 (Athens, 2004). N. Skandamis, European Law, Institutions and Legal Orders of the European Union (Athens, 1997). V. Skouris, Commentary of the EU and EE Treaties (Athens, 2003). 2.

In Languages Other than Greek

Th. Georgopoulos, The Greek Legislator’s Liability in Case of Breach of EC Law (Athens-Brussels, 2002). J. Iliopoulos-Strangas and H. Bauer (eds), The New European Union (AthensBerlin-Brussels, 2003). 57. 58. 59. 60. 61.

Van Schijndel v. Stichting Pensioenfonds voor Fysiotherapeuten, Case No. C-430–431/1993 [1995] ECR I-4705. Andrea Francovich and Daniella Bonifaci v. Italy, Case Nos C-6/90 and 9/90 [1991] ECR I-5357. , June 6, 2006. Council Directive 89/48; see above, ftn. 47. Commission v. Hellenic Republic, Case No. C-365/93 [1995] ECR I-499.

Application of Community Law in Greece B.

ARTICLES AND OTHER CONTRIBUTIONS

1.

In Greek

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D. Anagnostopoulou-Giannakou, ‘The National Judge as a Factor of the Community Trial’ in The European Court of Justice after 50 years of Operation, N. Frangakis (ed.) (Athens-Komotini, 2004). K. Ioannou, ‘The Greek Judge in Applying Community Law (1981–1985)’, EEEur.D 5 (1985) 77–118. K.D. Kerameus, ‘Constitution, National Judges and Community Law. A Short Comment on a Large Subject’ in Accession and Participation of Greece to the European Communities: The Constitutional Aspect (Thessaloniki-Athens, 1987) 67–84. V. Skouris, ‘Community Law in Greek Legislation and Court Practice. Basic Issues’, EEEur.D 5 (1985) 3–15. 2.

In Languages Other than Greek

V. Christianos, ‘Les juridictions helléniques face à la primauté du droit communautaire’, Revue française de droit administratif 6 (1990) 969–972. D. Evrigenis, ‘Legal and constitutional implications of Greek accession to the European Communities’, CMLR 17 (1980) 157–169. G. Gerapetritis, ‘EU Law v. the Hellenic Constitution: the Council of State Nonapproach, Decisions 3457/1998 and 1440/2000’, RHDI 54 (2001) 319–331. K.D. Kerameus and G. Kremlis, ‘The Application of Community Law in Greece, 1981–1987’, CMLR 25 (1988) 141–175. P.J. Kozyris, ‘Reflections on the Impact of Membership in the European Communities on Greek Legal Culture’, Journal of Modern Greek Studies 11 (1993) 29–49. E. Manganaris, ‘The Greek Council of State – Europhobic or Simply Overprotective?’, European Law Review 25 (2000) 200–207. J.A. Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law’, CMLR 9 (1972) 425–438.

Chapter 5

The General Principles of Civil Law Symeon C. Symeonides*

I.

INTRODUCTION: SCOPE AND FUNCTION OF BOOK I OF THE CIVIL CODE

In comparing the methodology and characteristics of legal thinking in Civil Law systems with those prevalent in Common Law systems, commentators often contrast the deductive style of the former with the inductive style of the latter. Perhaps the best example of the deductive style of the Civil Law mode of thinking is the architecture of a typical civil code and its arrangement from the general to the specific. Like the German Civil Code (BGB), the Greek Civil Code (CC) follows this feature by devoting a whole book, the first of its five, to what it calls General Principles (γενικές αρχές, genikes arches). Gathered there are provisions on natural and legal persons; capacity to hold rights and to enter into juridical acts; formal and substantive validity of juridical acts; representation and authority; consent and ratification; terms and conditions; prescription and peremption; abuse of rights, self-help and self-defense. This chapter is a brief description of the content and role of these principles. Their importance is manifested by their vast, almost unlimited, scope of application. Indeed, unless displaced or contradicted by more * Dean and Professor of Law, Willamette University College of Law, Salem, Oregon. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 79–101. © 2008, Kluwer Law International BV, The Netherlands.

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specific rules, these general principles are applicable throughout the Civil Code, and, for that matter, the entire private law, including commercial law. Although this organizational feature of the Civil Code helps avoid repetition and promotes efficiency and consistency, it may also be a trap for a commonlaw lawyer who is not accustomed to working with Continental civil codes. The drive for systematization often requires that rules regulating or affecting a given transaction be placed in different parts of the Civil Code, depending on their relative generality or specificity. For example, rules regulating the sale of chattel are found not only in the part of the Code dealing with the contract of sale (e.g., Arts 513–572 located in Book II on Obligations), but also in the part dealing with the transfer of ownership (e.g., Arts 1034–1040 of Book III on Real Rights), as well as in the part dealing with juridical acts in general (e.g., Arts 127–200 of Book I on General Principles). Each of these groups of Articles presupposes the existence of the other and this interdependence should not be overlooked by a lawyer handling such a sale. II.

NATURAL PERSONS (φυσικά πρόσωπα, fysika prosopa)

A.

PERSONALITY OR JURIDICAL CAPACITY (προσωπικότητα, prosopikotita; ικανότητα δικαίου, ikanotita dikaiou)

According to Article 34 CC, ‘every human being is capable of being the subject of rights and duties’. This capacity (the same as the German Rechtsfähigkeit) is distinguished from the capacity to enter into juridical acts (Geschäftsfähigkeit; see below, Section V B), and the capacity to be accountable for torts (Zurechnungsfähigkeit). While all natural persons, regardless of age or other personal qualities, are capable of holding rights and being subject to duties, not all of them are capable of entering into juridical acts or of being legally at fault for purposes of delictual responsibility. For example, a five-year old child is capable of inheriting and is obligated to respect his parents, but he can neither contract without their consent nor can he be held personally accountable for his torts. B.

COMMENCEMENT AND TERMINATION OF PERSONALITY

Although for purposes of the criminal law personality begins at an earlier time (see, e.g. Arts 303, 304 PC), for purposes of the Civil Law personality begins with live birth (Art. 35 CC). Even so, for certain limited purposes, personality begins at conception, provided that the child is born alive (nasciturus). Thus, a child born alive is capable of acquiring inheritance and other similar rights that accrued during the period of gestation (Arts 36, 1711, 1867, 1936 CC). In cases of in vitro fertilization (see Ch. 9, Section IV A), academic opinion is divided on whether conception coincides with fertilization in vitro or with implantation. However, the

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1997 Council of Europe Convention on Human Rights and Biomedicine,1 may lend support to the former position. Personality terminates with death (Art 35 CC), and only with death. The prevailing opinion is that death occurs with the cessation of brain activity. Proof of death is regulated in detail by special statutes and the evidentiary rules of the Codes of Civil and Criminal Procedure. The Civil Code considers as proven the death of a person whose body has not been recovered ‘if he disappeared under conditions rendering his death certain’ (Art. 38), e.g. in an airplane crash. Like all other Continental civil codes, except the French, the Civil Code abolished the Roman law’s age and gender-based presumptions of survivorship for determining the order of death of several persons who died in the same event. Article 38 CC establishes a rebuttable presumption of simultaneous death if ‘it cannot be proven that the one has survived the other.’ This means, inter alia, that none of the ‘simultaneously’ deceased persons inherits from the other and hence their estates devolve to their respective heirs. Unlike the presumption of §20 BGB (later replaced by §11 of the Missing Persons Law of 1939) which applied only when the deceased persons had succumbed to ‘a common danger’, the presumption of Article 38 applies even if the deceased persons have not perished in the same incident, provided that the time of their respective deaths cannot be otherwise established. C.

ABSENTIA (αφάνεια, afaneia)

A person whose death is ‘strongly probable’ (Art. 40 CC), either because he disappeared while in mortal danger or because he has been absent for ‘a long time’ without any news having been received of him, may be declared an absentee by the court, under procedures provided in Articles 42–44 CC and Articles 783–785 CCiv.P. Any person whose rights depend on the death of the missing person, such as heirs, spouse or creditors, has standing to seek the judicial declaration of absentia. The pertinent petition may be filed only after the lapse of a year from the last moment of the mortal danger, or five years from the last time any news had been received of the missing person (Art. 41 CC). Except when the law provides otherwise (see, e.g., Art. 1446 CC on divorce; see Ch. 9, Section III A), the judicial declaration of absentia produces the same effects as would result ‘if the death [of the absentee] had been proven’ (Art. 48 CC). It produces a legal presumption of death, both as to its occurrence and its time. Thus, as of the time specified in the judgment, persons whose rights depend on the death of the absentee, such as heirs, legatees, or creditors, may exercise these rights subject to an obligation to provide security for a term of ten years (Art. 49 CC). With regard to the occurrence of death, this presumption may be rebutted by the reappearance of the absentee (Art. 50 CC) or by a subsequent judgment revoking the declaration of absentia (Art. 46 CC). As to the time of 1. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, ratified by Law 2619/1998, GG A 132.

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death, this presumption is rebutted by a judgment establishing an earlier or later time (Art. 46 CC). D.

DOMICILE

Like most legal systems, Greek law distinguishes between domicile (κατοικία, katoikia) and residence (διαμονή, diamoni) but, unlike many other systems, it attributes little legal significance to residence alone. Article 51 CC defines domicile as ‘the place where one has his principal and permanent establishment.’ Doctrine and judicial decisions describe the two ingredients of domicile as the corpus, i.e. the physical residence or ‘establishment’ at a given place, and the animus, i.e. the intent to have that place as one’s principal and permanent establishment. Residence is the first of these ingredients, that is, the corpus unaccompanied by the animus. Since, factually as well as legally, domicile includes residence, the former absorbs the latter in all cases in which the domicile can be determined, except in some rare cases in the law of criminal procedure. However, residence becomes significant as the residual nexus whenever the domicile cannot be determined. In such cases, residence is deemed by law the equivalent of domicile (Art. 53 CC). A person retains his or her domicile until acquiring a new one (Art. 52 CC). Unlike other legal systems, Greek law does not recognize multiple simultaneous domiciles (Art. 51 CC). The only exception is provided by Article 51 CC for persons engaging in a trade or profession who, aside from their general domicile, may have a ‘special domicile’ at the place where they conduct their trade or profession. While the determination of domicile is normally a factual question to be decided from the totality of circumstances, domicile of certain classes of persons at a given place is fixed by operation of law (legal domicile). Thus, public servants have, by law, a domicile at the place where they serve (Art. 54 CC), and minors have the domicile of their parents or the parent under whose custody they have been placed. When both parents have custody but are domiciled at different places, the minor has the domicile of the parent with whom the minor usually resides (Art. 56 CC). Before the current Constitution, the wife had by law the same domicile as her husband for most purposes (Art. 55 CC). The pertinent Article has been repealed as incompatible with the principle of equality of sexes (Law 1329/1983; see Ch. 9, Sections I, II E, F). E.

PROTECTION OF PERSONALITY

After the Swiss Civil Code, the Greek Civil Code was the first Continental civil code to recognize an all-inclusive, comprehensive right of personality of natural persons, and to accord it the protection of the civil law (Art. 57). Purposefully, the Code does not define the exact contours of the concept of personality, thus allowing its expansion as the fabric and mores of society change. It is generally

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said that personality encompasses all the tangible and intangible elements that constitute one’s physical, emotional, intellectual, moral, and social existence. It includes a person’s privacy, reputation and good name, intellectual property, and much more. Protection of personality under the Civil Code overlaps with, but also transcends, protection by criminal law (Arts 299 et seq., 361 et seq. PC), since it encompasses compensation for the victim. It also goes beyond the protection of constitutional law, which, strictly speaking, protects the person from state rather than private intrusion. Nevertheless, by declaring that ‘[r]espect and protection of the value of the human being constitute the primary obligations of the State,’ Article 2 of the Constitution strengthens the Civil Code’s protection against legislative infringement. The Civil Code grants a general action for the protection of personality against any ‘unlawful’ intrusion, invasion or infringement (Art. 57). The action is available even against a defendant who is not, or is incapable of being, at fault, and may result in a prohibitory or mandatory injunction. A defendant found to be at fault may be ordered to pay monetary compensation or make other reparation for ‘moral damage’ (Art. 59), and may be sued under general tort law for patrimonial damage. The Code provides a similar action for the protection of the memory of a deceased person (Art. 57 I), for the protection of a person’s name (see Art. 58, which has been interpreted to extend to legal persons as well), and for the protection of the products of one’s intellect (intellectual property; Art. 60). The latter provision has been largely supplanted by special laws, such as Law 2121/1993 on intellectual property, as well as several international conventions ratified by Greece, such as the Berne Convention of 1886 for the protection of literary and artistic works as revised in Brussels in 1948 and expanded in Paris in 1971.2 These laws, as well as those regulating industrial property, are discussed below (Ch. 11, Sections IV, V). Other recent laws, such as Law 2472/1997 for the protection of personal data, have also supplanted the pertinent provisions of the Civil Code by providing more specific protection to some important facets of the right of personality. III.

LEGAL OR JURIDICAL PERSONS (νομικά πρόσωπα, nomika prosopa)

A.

CATEGORIES OF LEGAL PERSONS

Greek law distinguishes between legal persons of public law and those of private law. Academic writers and judicial practice have developed the intermediate category of legal persons of mixed character for entities that do not fall neatly into either category. Legal persons of public law are established by the state for the 2. Ratified by Law 5237/1931 and Law 100/1975 (GG A 162) respectively.

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promotion of a public, governmental, or quasi-governmental purpose. As their name suggests, these legal persons are governed by the rules of public law and only secondarily by the rules of private law. The same is true for the legal persons of mixed character, which, although organized as private corporations, are devoted to a public purpose or a purpose in which the state has a great interest. Examples of this latter kind are the public utilities, communications and major transportation companies (see Ch. 3, Section IV C). The legal persons of private law are devoted to a private purpose, whether for profit or not, and are regulated by private law. They are subdivided into commercial or business associations regulated by commercial law (see Ch. 12) and non-commercial legal persons regulated by the Civil Code. Articles 741–785 (Book II) regulate the ‘civil’, i.e. non-commercial, company (or civil partnership; αστική εταιρία, astiki etairia; see Ch. 6, Section II J). This is an unincorporated association which, when pursuing an economic purpose, may, under certain conditions (Art. 784 CC), be accorded legal personality. Articles 78–126 CC deal with three legal entities not devoted to the pursuit of profit: association (σωματείο, somateio; Arts 78–107), foundation (ίδρυμα, idryma; Arts 108–121) and fund-raising committees (επιτροπές εράνων, epitropes eranon; Arts 122–126). The following is a brief outline of some of the general principles of the law of legal persons contained in Articles 61–77 CC. Unless displaced by more specific rules provided elsewhere, these principles apply to all legal persons, including business associations and, to a lesser extent, legal persons of public law or of mixed character. B.

SOME GENERAL PRINCIPLES OF THE LAW OF LEGAL PERSONS

1.

Formal Requirements

In Greece, the establishment of a legal person may not be done orally. Article 63 CC mandates that the agreement for the formation of the entity and for its internal organization and outward operation (καταστατικό, katastatiko, referred to hereafter as ‘charter’) must be in writing, under penalty of nullity (Art. 159 I 1 CC). Special provisions impose additional formalities, such as a notarial act for particular legal persons, and recordation in the public records or publication in special bulletins or newspapers for all legal persons. 2.

Personality

When the requirements for its valid formation have been met, the legal person comes into existence and is accorded juridical personality. This means that it acquires the capacity to be the subject of rights and duties, to own property, to sue and be sued in its own name, to enter into juridical acts and, generally, to be treated as a person in the eyes of the law. Naturally, this does not extend to activities or legal relations that presuppose the qualities of a natural person (Art. 62 CC).

The General Principles of Civil Law 3.

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Seat (έδρα, edra)

The seat of the legal person is at the place designated by the charter, or, in the absence of such designation, at the place where its central administration is located (Art. 64 CC). If the central administration is at a place other than the one designated in the charter, the latter designation prevails, but not against those who in good faith relied on the appearance of a seat in the former place. While it is disputed whether a legal person may have multiple general seats, a ‘special seat’ in addition to the general seat is clearly permissible under an analogical application of Article 51.3 CC (see above, Section II D). 4.

Liability for Juridical Acts

The legal person is bound by juridical acts (see below, Section V A) entered into by the persons entrusted by the charter with the management of its affairs, provided they have acted within the limits of their authority (Art. 70 CC). The authority of these persons is expressly or impliedly prescribed in the charter which is publicly recorded or otherwise publicized and is assertible against third parties (Art. 68 CC) regardless of their good or bad faith. By analogical application of the rules of representation (Arts 211–235 CC; see below, Section VII) and mandate (Arts 713–729 CC; see Ch. 6, Section II I), a legal person may also be bound by other juridical acts provided they were otherwise authorized and performed either by the above named persons or by other authorized agents or employees (Art. 68.2 CC). 5.

Non-contractual and Delictual Liability

Article 71 CC provides that ‘the legal person is liable for the acts or omissions of its representative organs [...] in the performance of their delegated duties [...]. The individual organ that is at fault is also liable in solido.’ By virtue of other Articles (e.g. Arts 334, 922 CC; see Ch. 6, Sections I B 8 and IV F respectively), the legal person is also liable for the acts of its non-representative organs, such as servants or other subordinates, acting in the course of their duties. However, unlike the liability of Articles 334 and 922 CC, which is liability for someone else’s acts, liability under Article 71 CC is liability for one’s own acts. This is so because the ‘representative organs’ of Article 71 CC are generally understood to encompass only those persons, such as the chair or members of the board or the managing partner, who are authorized by the charter to act for the legal entity. According to the prevailing ‘organic theory’, these organs do not merely represent the entity, they are the entity. Consequently, the entity’s liability for their acts is not secondary or derivative, but rather a primary liability that attaches even if the organ was not at fault, so long as the act or omission has given rise to an obligation for damages. When the organ is at fault, the organ is solidarily liable (i.e. for the whole amount) to the victim, and is subject to an action for indemnity by the entity that discharges the obligation to the victim.

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The liability of the legal person attaches even if the organ violated, exceeded or abused his duties, so long as he was acting ‘in the performance’ of these duties. It is disputed whether the entity is liable for the acts of the organ committed merely ‘on the occasion’ of the performance of his duties. A typical hornbook example is that, while the entity will be liable for the misrepresentation and fraud perpetrated by its own chairman during negotiations with the other party, the entity will not be liable for the chairman’s forgery of the other party’s signature. IV.

RIGHTS (δικαιώματα, dikaiomata)

A.

MEANING

The Greek word δικαίωμα (dikaioma) is literally translated as ‘right’ and has the same meaning as the French term droit subjectif or the German subjektives Recht; a meaning, however, not defined in the Civil Code. The prevailing definition in Greece seems to be the one suggested by Enneccerus, with slight modifications made by nearly every Greek author. Right is defined as the power granted by law for the vindication of legally recognized interests. All standard treatises on General Principles contain extensive discussion of rights, including their classification, exercise and protection. This discussion, which usually precedes the discussion of persons and always precedes the discussion of juridical acts, is indicative of the Greek lawyer’s preoccupation with rights, rather than remedies or actions. This is in contrast to the Common Law or Roman law approaches. Unfortunately, space limitations do not permit even a brief presentation of this interesting, but mostly pedagogical discussion. Instead, what follows is a brief explanation of some aspects of the exercise of rights expressly provided in the Civil Code. B.

ABUSE OF RIGHT (κατάχρηση δικαιώματος, katachrisi dikaiomatos)

Unlike the French, and like the German, Austrian and Swiss civil codes, the Greek Civil Code has expressly codified the doctrine of abuse of rights, originally developed by the French courts in the middle of the 19th century. Article 281 provides that ‘[t]he exercise of a right is prohibited when it manifestly exceeds the limits dictated by good faith, good morals, or the social or economic purpose of the right.’ This formulation of the doctrine is broader than that of §226 BGB (already expanded by German jurisprudence) which considers the exercise of a right as unlawful when ‘its purpose can only be to cause damage to another,’ and is more concrete and categorical than that of Article 2 of the Swiss Civil Code which merely ‘does not sanction’ the manifest abuse of rights. A provision parallel to Article 281 CC is found in Article 25 I and III of the Constitution (see Ch. 3, Section VI B 1).

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In order to be abusive and thus prohibited under Article 281 CC, the exercise of the right must ‘manifestly’ exceed the limits dictated by the deliberately vague concepts of good faith, good morals, or the social and economic purpose for which the right was granted in the first place. These concepts and limits are determined judicially on the basis of objective considerations. The personal motives of the obligee, although pertinent, are not determinative. According to established judicial practice, the scope of Article 281 CC encompasses all private rights, patrimonial or extra patrimonial, whether they are derived from juridical acts or directly from the law, including rules of public order. Article 281 CC is itself a rule of public order that cannot be derogated from by contrary agreement. Opinion is divided on whether Article 281 also encompasses procedural rights, rights derived from Community law, or the so-called ‘natural freedoms’, such as the freedom to enter into a particular contract. However, special consumer statutes, such as Law 2251/1994 (as amended by Law 2741/1999), prohibit the abusive exercise of contractual freedoms at the expense of consumers. Unlike the Swiss Civil Code which ‘does not sanction’ the abusive exercise of a right, the Greek Civil Code ‘prohibits’ such exercise. This means, inter alia, that if such exercise took the form of a juridical act, the act will be void. If it was manifested by a physical act, the person adversely affected by it may obtain prohibitory or mandatory injunctions as well as damages. C.

‘DEACTIVATION’ OF RIGHT (αποδυνάμωση, apodynamosi)

Influenced by German authorities, and based on Article 281 CC and the general principle of good faith (Art. 288 CC), which pervades the doctrine of abuse of rights, Greek courts have developed the parallel doctrine of ‘deactivation’ (German: Verwirkung) of rights, which resembles the Common Law doctrine of latches or equitable estoppel. A right may be ‘deactivated’ or ‘lose its force’ if the obligee failed to exercise it for a very long period of time (though shorter than the applicable prescription) in circumstances that led the obligor to reasonably believe that the obligee would not exercise the right, and if enforcement of the right would render severely onerous the condition of the obligor. All rights granted by private law, including the non-prescriptible ones, are subject to ‘deactivation’. D.

SELF-HELP, SELF-DEFENSE, EMERGENCY (αυτοδικία, autodikia; άμυνα, amyna; κατάσταση ανάγκης, katastasi anangis)

The Civil Code permits self-help and self-defense under narrowly defined circumstances. According to Article 282 CC, the obligee may use self-help in satisfying a lawful, non-prescribed claim only when public assistance is unavailable or would be delayed to such an extent as to make satisfaction of the claim significantly more difficult or impossible. The obligee is liable for damages if he uses self-help in

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circumstances that do not meet the above conditions, or uses excessive force (Art. 283 CC). Article 284 CC permits self-defense in repelling an unlawful imminent attack against oneself or another. Article 285 CC allows the destruction of things belonging to another when necessary to ward off an imminent danger that threatens disproportionate damage to the actor or another. The actor is liable for compensation if he himself caused the danger, and may be held liable in other cases depending on the circumstances, saving his right to seek indemnification from the third party who benefited from the act (Art. 286 CC). V.

JURIDICAL ACTS (δικαιοπραξίες, dikaiopraxies)

A.

DEFINITION

If the concept of right is the ‘last of abstractions’, the concept of juridical acts is the second to last. The prevailing definition of a juridical act is an act by which a person declares his will to cause certain legal consequences and to which the law ascribes those or other consequences consisting of acquiring, altering, transferring or terminating rights or legal relations. The term juridical act is not only broader than the terms contract or agreement, but also the term ‘declaration of will’ (δήλωση βουλήσεως, dilosi vouliseos) which the Civil Code often uses interchangeably with the term juridical act. While some juridical acts, especially unilateral ones, consist of nothing but a declaration of will, others contain more than one declaration and/or some additional operative facts. Moreover, not all declarations produce legal consequences, but only those which the declarant so intended and to which the law ascribes such consequences. Articles 127 through 200 CC establish the general principles which – unless displaced by more specific rules contained in the Civil Code or other law – apply to all juridical acts, be they unilateral or bilateral, inter vivos or causa mortis, onerous or gratuitous, abstract or causal, dispositive or non-dispositive, and so forth. B.

CAPACITY (ικανότητα, ikanotita)

Greek law distinguishes between persons with full, limited, or no capacity to enter into juridical acts. All persons above the age of majority (18) have full capacity (Art. 127 CC), unless they fall into any of the categories of persons with limited or no capacity, which are described below. Before describing these categories, it would be helpful to briefly outline the institution of ‘judicial assistance’ (δικαστική συμπαράσταση, dikastiki symparastasi), which in 1996 (Law 2447/1996) replaced judicial interdiction and judicial guardianship (see Ch. 9, Sections I and VII D). Under the revised Civil Code

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Articles (1666 et seq.), a court may place under judicial assistance: (a) a person who, because of mental or psychological disturbance or physical infirmity, is totally or partly unable to take care of himself; or (b) a person who, because of prodigality, chemical dependency, or alcoholism exposes himself or his family to the danger of deprivation. Judicial assistance may be ‘deprivatory’ (στερητική, steritiki), i.e. depriving the person of the capacity to enter into juridical acts in his own name, or it can be supplemental (επικουρική, epikouriki), i.e. allowing the person to enter into juridical acts but only with the prior concurrence of his court-appointed judicial assistant. Depending on the court’s decision, either type of assistance may be total or partial in that it may encompass all or some juridical acts respectively. Incarcerated persons, who under the previous law were incapable of entering into juridical acts other than testaments, are now fully capable unless, upon their request, they are placed under supplemental judicial assistance (Art. 1688 CC). Minors below the age of ten (Art. 128.1 CC) and persons placed under full deprivatory judicial assistance (Arts 128.2, 1676 CC) are incapable of entering into any juridical act in their own name and may only act through their legal representatives, such as tutors or judicial assistants. Persons placed under partial deprivatory judicial assistance are deprived of capacity to enter into those acts specified in the judgment (Art. 1676 CC). In all of these cases, a declaration of will made by or to the incapable person is null (Arts 130, 170 CC) and so is the attempted juridical act. The prevailing opinion is that the resulting nullity is absolute, i.e. it may be invoked by either party, as well as by third parties who have an interest in doing so. Also null is a declaration of will made by or to a person who, at the time of the declaration, was ‘not conscious of his acts or whose ability to reason was decisively restricted because of a psychological or mental disturbance’ (Arts 131, 171 I CC). Typical examples are mental illness, extremely high fever, intoxication, or heavy drunkenness. The resulting nullity of the attempted juridical act may be invoked by either party. However, the incapable party may be required to indemnify the other party for the damage caused by the nullity if that party was reasonably unaware of the incapacity and the damage cannot be otherwise covered (Arts 132, 171 II CC). Persons placed under supplemental judicial assistance may enter into juridical acts only with the prior written concurrence of their judicial assistant or with court concurrence, if the assistant refuses (Arts 129, 1676, 1683 CC). In the absence of such concurrence, the attempted juridical act is null, but the nullity may be invoked only by the judicial assistant or the incapable person or his successors (Art. 1683 CC). Minors above the age of ten are generally incapable of entering into juridical acts from which they derive no benefit (Art. 134 CC). However, Articles 135–137 CC allow minors above the age of 14 and 15 to engage in certain acts under the conditions specified therein, either with or without the concurrence of the parent or guardian. Acts entered into in violation of these conditions are null (Art. 130 CC), but opinions differ on whether the nullity is absolute (judicial opinion) or relative (academic doctrine).

90 C.

Symeon C. Symeonides VICES OF CONSENT

Articles 140–157 CC deal with what in other systems are known as vices of consent: error, fraud, and duress or threat. However, because the term ‘consent’ usually presupposes a contract or other bilateral juridical act, and because these Articles apply to all juridical acts including the unilateral ones, the Code avoids the term ‘consent’ and instead speaks of a ‘declaration of will’ (δήλωση βουλήσεως, dilosi vouliseos) and its defects. A declaration of will is defective when it is the product of error, fraud, or threat. While all types of fraud may vitiate consent, only an error that is ‘substantial’ (Arts 140, 141 CC) or a threat that is ‘unlawful or against good morals’ (Art. 150 CC) produce this result. Furthermore, the threat must be such as to instill fear in a sane person and pose a serious and immediate danger to the life, physical integrity, liberty, honor, or patrimony of the declarant or of persons closely related to him (Art. 151 CC). An error is ‘substantial’ when it affects a point of such importance to the juridical act that the declarant would not have attempted it had he known of the true state of affairs (Art. 141 CC). Aside from the marriage contract (where only an error as to the identity of one spouse would vitiate the consent of the other; see Chapter 9 II D), an error as to the qualities of a person or thing is deemed important enough to vitiate the declaration only if, based on the parties’ agreement, the transactional usages or the principle of good faith, such qualities are so essential to the juridical act that the declarant would not have attempted the act had he known of the true situation (Art. 142 CC). On the other hand, an error pertaining exclusively to the motives of the declarant is not substantial (Art. 143 CC), except when the law provides otherwise (see, e.g. Arts 1784–1786 CC in relation to wills; see also Ch. 10, Section IV F). A juridical act resulting from a declaration of will that suffers from a vice of consent is voidable and may only be rescinded judicially and at the behest of the declarant or his successors (Arts 140, 147, 150, 154 CC). When the vice consists of error or fraud, rescission is precluded if the other party accepts the declaration as intended by the declarant (Arts 144, 148 CC). In the case of error, rescission is also precluded when it is contrary to good faith (Art. 144 CC). The party who obtains rescission on grounds of his own error is liable for the loss thereby sustained by others, unless they knew or should have known of the error (Art. 145 CC). The award of damages cannot exceed the amount the other party would have received if the juridical act were valid. The party whose declaration was procured by fraud or threat may, in addition to his rescission rights, be entitled to compensation under the general tort provisions (Arts 149, 152 CC). Such compensation may be due even if that party chooses to accept the juridical act as is. The right to demand rescission is extinguished by express or tacit renunciation (Art. 156 CC), or by the lapse of two years from the juridical act (Art. 157 CC). If the vice of consent was a continuous one, the two-year period does not commence until the vice ends, but in any event the action for rescission prescribes after 20 years from the juridical act.

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Unlike error, fraud or threat, which are defects of the will of the declarant, simulation (εικονικότητα, eikonikotita) describes a situation in which the will of the declarant is not defective, but its declaration knowingly and deliberately does not correspond to the intent of the declarant, as when he makes a declaration jokingly or ‘for appearances only’ (Art. 138 CC). A simulated juridical act is null, but the nullity may not be asserted against parties who were reasonably unaware of the simulation (Art. 139 CC). A juridical act concealed under the simulated act may be valid if the parties so intended and the concealed act meets the other legal requirements (Art. 138 CC). D.

FORM

As a general matter, juridical acts must be executed in a certain form only when the law expressly so requires (Art. 158 CC) or the parties have so provided (Art. 159 CC). The instances where the law does require a particular form are too numerous to be listed here. The types of form known to Greek law are: (a) private instrument signed by the declarant (Art. 160 CC); (b) notarial act; and (c) various affidavits before public authorities. Except for holographic wills (see Ch. 10, Section IV C 1), the text of the act need not be in the handwriting of the declarant so long as he affixes his signature at the end of the document (Art. 160 CC). For bearer instruments issued in great numbers, the signature of the issuer may be affixed by mechanical means (Art. 163 CC). However, in all other instruments, the signature must be in the hand of the declarant. A recent enactment (Presidential Decree 150/20013) treats pre-approved electronic digital signatures that meet certain conditions as the equivalent of hand-written signatures. In contracts required to be in writing, the signature of both parties must be placed on the same document. When multiple originals are issued, it suffices if the signature of one party appears in the original retained by the other (Art. 160 CC). When the contract must be executed in notarial form, the offer and the acceptance may be executed in separate documents (Art. 161 CC). A juridical act not executed in the form prescribed by law is null, unless the law provides otherwise (Art. 159 CC). The nullity is absolute and may be invoked by either party or by the court on its own motion. Except when the law provides otherwise, as in the case of manual gifts, the nullity may not be cured retroactively by subsequent performance or other events short of re-executing the act in the prescribed form (Art. 183 CC). In contrast, failure to follow a form imposed by the parties rather than by law results in nullity only ‘in cases of doubt’ (Art. 159.2 CC), i.e. when the intent of the parties to that effect is unclear. Even then, the nullity may be cured by subsequent knowing performance.

3. Transposing Directive 1999/93 of the European Parliament and of the Council of December 13, 1999 on a Community framework for electronic signatures, OJ L 13/12–20, 2000.

92 E.

Symeon C. Symeonides FORMATION OF CONTRACTS (σύναψη συμβάσεων, synapsi symvaseon)

The Greek terms for offer (πρόταση, protasi) and acceptance (αποδοχή, apodochi) have the same meaning as in the Common Law, but the applicable rules differ in many respects. An offer, an acceptance, and generally any declaration of will become binding only upon receipt by the addressee (Arts 167, 192 CC), rather than upon dispatch, and may be revoked without any limitation prior to or contemporaneously with receipt (Art. 168 CC). The addressee need not receive the declaration or knowledge of its contents personally, so long as the declaration has reached his sphere of control. The validity or effect of an offer is not affected by the death or incapacitation of the offeror or the offeree following dispatch (Arts 169, 188 CC). Upon receipt of the offer, the offeror is bound not to revoke it until the offeree has had a reasonable time to accept it (Art. 185 CC), unless the offeror had reserved the right to revoke it earlier or revocation is justified by the nature of the contract or the circumstances of the case (Art. 186 CC). The offer expires when the offeree rejects it or fails to accept it in a timely manner (Art. 187 CC). To be effective, the acceptance of the offer must be received by the offeror within the prescribed time or, if no time has been prescribed, within the time during which, under the circumstances, the offeror is obligated to wait for the acceptance (Art. 189 CC). Nevertheless, an acceptance dispatched timely but received late is effective, unless the offeror immediately notifies the offeree of the delay (Art. 190 CC). A late acceptance, or a qualified one, is deemed as rejection of the offer and operates as a new offer (Art. 191 CC). The contract (σύμβαση, symvasi) is concluded the moment the acceptance is received by the offeror (Art. 192 CC). However, depending on the content of the offer, the transactional usages, and the special circumstances of the case, the contract may be concluded upon dispatch of the acceptance (Art. 193 CC) or upon execution of the notarial act containing the acceptance (Art. 194 CC). In the absence of contrary intent, the contract is not completed unless there is agreement on all points (Art. 195 CC). The general principle of good faith binds the parties even during the negotiating stage. Article 197 CC provides that the parties must deal with each other according to the dictates of good faith and transactional usages. Any damage caused in violation of this duty (culpa in contrahendo) must be compensated for by the party at fault, even if the contract is not eventually concluded (Art. 198 CC). F.

CONSIDERATION AND CAUSE

The common-law lawyer familiar with Civil Law systems would not expect to find here any discussion of consideration as an element of contract formation, for the simple reason that consideration as such is unknown to the Civil Law. Yet, what the Common Law accomplishes through the doctrine of consideration, the Civil Law accomplishes through other means, one of which is the theory of cause (αιτία, aitia). The difference between the two systems on this issue is that,

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while the Common Law focuses on what the promisor receives in return for his promise, the Civil Law focuses on the purpose for which the promisor makes his promise. Cause, therefore, is the reason or purpose for which the promisor obligates himself. This purpose should not be confused with the ultimate motives of the promisor, which, in principle, are irrelevant in the eyes of the law. The role and importance of cause varies from one Civil Law system to the other. For example, cause plays a dominant role in the French Civil Code. This is manifested in Article 1108 of that code, which elevates the existence, lawfulness and validity of the underlying cause into an indispensable foundation for all contracts, and in the general hostility of the French system towards non-causal or ‘abstract’ juridical acts. On the other hand, the Greek Civil Code (like the BGB) does not contain a general rule requiring a cause for all juridical acts. Nevertheless, what the French Code accomplishes through Article 1108, the Greek Civil Code accomplishes through Articles 174–178, which render void all juridical acts whose content is unlawful or immoral, and through the Articles on unjust enrichment (Arts 904–913; see Ch. 6, Section III), which authorize the recovery of a payment made ‘without a lawful cause’. It is from these provisions that Greek scholars derive the principle that, as a general matter, cause is an essential element for the validity and enforceability of obligations and that most juridical acts are ‘causal’. However, unlike the French and like the German Codes, the Greek Civil Code expressly provides for juridical acts that are detached from their underlying cause, either by operation of law or by the will of the parties. Examples of such acts in the Greek civil law (as distinguished from commercial law) are the transfer of movables (Art. 1034 CC; see Ch. 7, Section IV C), the assumption of or release from debts (Arts 471, 454 CC; see Ch. 6, Section I K, I 6), the assignment of claims (Art. 455 CC; see Ch. 6, Section I J), and the so-called abstract promise or acknowledgment of debts (Art. 873 CC; see Ch. 6, Section II S). These acts are known as ‘abstract’ or ‘non-causal’ juridical acts. They differ from ‘causal’ juridical acts only in the sense that their validity and enforceability do not depend on the underlying cause. In practical terms, this means that the obligee recovers without having to prove the existence and validity of the cause. However, if a cause is lacking or is unlawful or immoral, the obligor is protected through the remedy of unjust enrichment (see Ch. 6, Section III). G.

CONTENT OF JURIDICAL ACTS

An otherwise valid juridical act whose content contravenes a prohibitory provision of law is null unless the law prescribes a lesser sanction (Art. 174 CC). An act of alienation prohibited by law or by judicial decision is null. If the prohibition is intended for the protection of certain persons, only they may invoke the nullity (Arts 175, 176 CC). Unless the law provides otherwise, a juridical act restricting the alienation of an alienable right is valid only to the extent of binding the person and does not affect the validity of the alienation (Art. 177 CC). Also void are juridical acts that are contrary to good morals (Art. 178 CC). Article 179 CC gives two examples: juridical acts that unduly restrict the liberty of the

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individual, and acts in which one party exploits the need, feebleness or inexperience of the other in order to gain benefits that are obviously disproportionate to his own performance (unconscionability). An impressive body of cases, too voluminous to be recounted here, has been developed around these two open-ended Articles. H.

NULLITIES (ακυρότητες, akyrotites)

As the preceding discussion indicates, Greek law distinguishes between null or void (άκυρη, akyri) and voidable (ακυρώσιμη, akyrosimi) juridical acts. A further category of ‘non-existent’ (ανύπαρκτη, anyparkti) juridical acts has practical significance only in the law of marriage (see Ch. 9, Section II D). Juridical acts that are null produce no legal effects and need not be judicially declared null (Art. 180 CC). The right to invoke the nullity of a null juridical act is not subject to prescription or peremption, but may be subject to ‘deactivation’ (see above, Section IV C). Null acts are divided into absolutely null and relatively null, depending on which party has the right to invoke the nullity. The first category encompasses acts such as those that are contrary to good morals or contravene a provision of law designed for the protection of the public interest. This nullity may be invoked by any person with an interest in doing so, as well as by the court on its own motion. With only minor exceptions, an absolutely null juridical act may not be cured by subsequent events. Its subsequent ratification does not operate retroactively, but may impose a personal obligation on the parties to perform as if the original act was valid ab initio (Art. 183 CC). The category of relatively null juridical acts encompasses acts that violate rules intended for the protection of a private interest. A relative nullity may be invoked at any time, but only by the parties for whose protection the violated rule was intended, or their heirs, assignees, or creditors. In contrast to absolutely null acts, a relatively null act produces legal effects until the proper party invokes the nullity, at which time the effects are retroactively erased, except in certain cases where the law expressly protects third persons acting in good faith. If that party fails to exercise or renounces that right, the act remains effective. Voidable are the juridical acts that are based on a vice of consent (see above, C). These acts produce all their legal effects, unless rescinded by a judicial decision. Only the party whose consent was vitiated or his heirs have standing to seek rescission. A judicially rescinded juridical act is treated as void ab initio; hence, its effects are erased retroactively. As in the case of void juridical acts, third parties acting in good faith are protected only when the law so provides. I.

INTERPRETATION

In addition to a number of special rules scattered throughout the Civil Code, Book I contains two important general rules of interpretation of juridical acts. The first

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one applies to all juridical acts and requires the judge to search for the true intent of the parties without undue attachment to the words used (Art. 173 CC). The second rule applies primarily to contracts and requires that they be ‘interpreted as dictated by good faith, taking account of transactional usages’ (Art. 200 CC). Read together, these two rules strike a good balance between subjective and objective criteria, both of which have been rendered more concrete by a voluminous body of judicial decisions. VI.

TERMS AND CONDITIONS

The Greek terminology for condition (αίρεση, airesi) and term (προθεσμία, prothesmia) has the same meaning as in other Civil Law systems, as well as in the Common Law. A condition is suspensive or precedent (αναβλητική, anavlitiki) when it delays the effects of a juridical act until the occurrence of a future and uncertain event (Art. 201 CC). The condition is resolutory or subsequent (διαλυτική, dialytiki) when its fulfillment (i.e. the occurrence of the future and uncertain event) terminates the effects of the juridical act (Art. 202 CC). When the occurrence of the future event is certain but the time is not, the juridical act is subject to a ‘term’, which may be suspensive or resolutory. By analogy, terms are governed by the rules governing conditions (Art. 210 CC). A juridical act that is subject to an incomprehensible, contradictory, unlawful or immoral condition is null (Art. 208 CC; for exceptions with regard to wills, see e.g. Art. 1794 CC). A juridical act subject to an impossible suspensive condition is null. If it is subject to an impossible resolutory condition, the condition has no effect (Art. 208 CC). During the pendency of the condition, the parties must refrain from acts that would impair or destroy the right subject to the condition. Breach of this duty renders the violator liable for damages that are collectible upon fulfillment of the condition (Art. 204 CC). If the violation consisted in the alienation of the object of the transaction, the alienation becomes ipso facto void upon fulfillment of the condition (Art. 206 CC). A condition is deemed fulfilled if, in a manner contrary to good faith, its fulfillment was prevented by the party who would be adversely affected by it. Conversely, a condition is deemed unfulfilled if, in a manner contrary to good faith, its fulfilment was caused by the party who would benefit from it (Art. 207 CC). VII.

REPRESENTATION AND PROCURATION

A.

INTRODUCTION

On this subject, Greek law is different from and more abstract than either the Common Law or French law. Under the general concept of representation (αντιπροσώπευση, antiprosopeusi), Greek law treats together all situations in which

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a declaration of will by or to one person binds or benefits directly another person, regardless of whether the underlying relationship is imposed by law (legal representation), is created by contract (voluntary representation), or results from the parties’ extracontractual conduct. Greek law also distinguishes sharply between, and treats separately, the external aspects of this relationship vis-à-vis third parties and the internal relationship between the principal and his representative. The internal relationship may be created by law or judicial decision, such as the relation between a minor and the custodian parent or the interdict and his guardian; or it may be based on a contract such as mandate, partnership, or hiring of services. These relationships are regulated in detail in other parts of the Civil Code, notably Books II and IV. The external relationship is regulated in Book I (Arts 211–235), and is the only one discussed here. Finally, a significant substantive difference between the Common Law and Greek law is the failure of the latter to recognize the notion of undisclosed agency, as well as its rather grudging recognition of partially disclosed agency and apparent authority. These differences are explained below. B.

EXPRESS, IMPLIED, AND APPARENT AUTHORITY

The Greek term for procuration or power of attorney (πληρεξουσιότητα, plirexousiotita) signifies both the juridical act by which a person confers representative authority to another and the conferred authority itself (Art. 216 CC). A procuration given directly to the representative may be expressed or implied and is subject to no special formalities. However, when the law requires the authorized act to be in a certain form, the procuration must be in the same form (Art. 217 CC). A procuration may also be communicated to the third party with whom the representative is authorized to transact (external procuration; Art. 217 CC). Again, it may be given expressly or impliedly, such as when the principal appoints a person to a position from which third parties may reasonably infer that the appointed person has the authority to bind the principal. This is called ‘tacit procuration’ by Greek writers, and it comes close to the common-law notions of apparent authority or agency by estoppel. Although the Civil Code does not expressly recognize this concept, Greek writers have found a basis for it in the doctrine of abuse of rights (Art. 281 CC; see above, Section IV B). In other words, although the ‘principal’ generally has a right to assert the lack of authority, the exercise of this right under these circumstances is considered abusive and thus prohibited when third parties have justifiably relied to their detriment on the appearance of authority. Aside from these instances, however, the principal is not bound by a contract entered into in his name by another person without, or in excess of, his authority, unless the principal ratifies the contract (Art. 229 CC). Until such ratification, the third party is free to withdraw from the contract (Art. 230 CC). In the absence of ratification, the third party who was reasonably unaware of the lack of authority may demand from the ‘representative’ either performance of the contract or damages. If the representative was also unaware of his lack of authority, the third party may only demand damages (Art. 231 CC).

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Juridical acts entered into by the representative after the termination of the procuration bind the principal only if neither the representative nor the third party knew or should have known of the termination (Art. 224 CC). If the representative knew of the termination, the principal is not bound to perform, but may be liable for reasonable compensation to a third party acting in good faith, if the principal could have easily notified that party of the termination of authority (Art. 225 CC). C.

UNDISCLOSED AND PARTIALLY DISCLOSED AGENCY

Article 211 of the Civil Code requires that, in order for the principal to be bound by the juridical acts of his representative, the latter must have acted ‘in the name’ of the principal, that is, to have disclosed to the third party both the existence and the identity of the principal. The disclosure may be express or tacit, i.e. it may be ‘indicated from the surrounding circumstances’ (tacit representation; Art. 211 CC). The courts have subsumed under the concept of tacit representation what is known in common-law systems as partially disclosed agency, namely a situation in which the agent reveals the existence but not the identity of the principal. However, outside the area of commercial law, neither the courts nor the academic authors have recognized the concept of fully undisclosed agency. The seemingly similar notion of ‘indirect representation’ is in fact no representation at all, since the effects of the juridical act of the indirect representative – who acts in his own name – flow directly to him rather than to his undisclosed principal. The ‘representative’ merely incurs a personal obligation to convey these effects to the principal through a separate juridical act which, although enforceable by an action for specific performance, does not often provide an effective remedy to the principal. His interests may be protected only if the representative had previously signed a so-called ‘assignment of future interests’. More importantly, however, in the ‘indirect representation’, no relation is created between the undisclosed principal and the third party. Even after the identity of the principal is revealed, neither he nor the third party has direct recourse against the other. The third party’s only recourse is against the representative. VIII.

PRESCRIPTION AND PEREMPTION

A.

CLARIFICATION OF TERMS

1.

Prescription

Prescription (παραγραφή, paragrafi) is the Civil Law term for what is known in the Common Law world as limitation of actions. According to Article 247 CC, it is not the right that is subject to prescription, but rather only the claim (αξίωση, axiosi), which is the right to demand from another, judicially or extrajudicially, a performance consisting of an act or omission.

98 2.

Symeon C. Symeonides Acquisitive Prescription and Prescription by Non-use

Acquisitive prescription (χρησικτησία, chrisiktisia) is a mode of acquiring ownership or other real rights by adverse possession for a period of time. It is regulated in Book III of the Code (see Ch. 7, Section IV B). The same Book also regulates prescription by non-use (αχρησία, achrisia), which is a mode of extinction of real rights other than ownership caused by failure to exercise them for a period of time. 3.

Peremption

Greek law recognizes a fourth kind of time limitation called αποσβεστική προθεσμία (aposvestiki prothesmia), which is literally translated as ‘extinctive term’ but is also known as ‘peremption’. Peremption is a period of time fixed by law or by the parties for the existence of the right (Art. 279 CC). Unless exercised within such period, the right (and not just the action) expires and no natural obligation subsists. Whether a particular time limitation is in the nature of peremption, rather than prescription, is a matter of interpretation of the pertinent statutory provision. Fortunately, the process is facilitated by the legislature’s skilful use of words that signify whether a particular time period is intended to be treated as peremption. The practical difference between peremption and prescription is that peremption may not be renounced, and is taken into account by the court ex officio (Art. 280 CC). For the rest, peremption is governed by the rules of prescription, applicable by analogy (Art. 279 CC). B.

GENERAL PRINCIPLES OF PRESCRIPTION

1.

Commencement and Accrual

As a general matter, prescription commences from the day the claim may be judicially pursued (Art. 251 CC). However, this rule is subject to many exceptions for specific types of claims (see e.g., Arts 252–254 CC). Prescription accrues upon the expiration of the last day of the period or, if that day is a legal holiday, upon the expiration of the next working day (Art. 242 CC). 2.

Suspension

Generally, prescription is suspended or tolled as between: spouses during marriage even if the marriage is later annulled; parents and children during minority; guardians and persons placed under judicial assistance during the guardianship; and with regard to claims by servants against their masters, during the period of service, but no longer than 15 years (Art. 256 CC). Greek law also recognizes a limited version of the doctrine of contra non valentem agere non currit prescriptio (‘prescription does not run against those unable to act’). Article 255 CC provides that, if, during

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the last six months of the prescriptive period, the obligee is prevented from pursuing his claim because of fraud of the obligor or because of force majeure, prescription is suspended for as long as the impediment lasts. In all the above situations, the period of suspension does not count towards accrual of prescription. Upon termination of the period of suspension, prescription commences to run again, but is not completed before the lapse of six months thereafter (Art. 257 CC). The following are situations in which, strictly speaking, prescription is prolonged rather than suspended: (a) prescription runs against persons with limited or no capacity to enter into juridical acts; however, if these persons also have no capacity to sue and have no guardian or legal representative, prescription is not completed before six months from the acquisition of full capacity or the appointment of a guardian or representative (Art. 258 CC); and (b) claims by or against a succession do not prescribe before six months from the day the heir was put into possession or an administrator was appointed (Art. 259 CC). 3.

Interruption

The two major modes of interruption are: (a) acknowledgment of the obligation by the obligor (Art. 260 CC); and (b) the filing of an action by the obligee (Art. 261 CC). Other modes of interruption are provided in Arts 264–269 CC. Acknowledgment may be express or tacit, and is subject to no special form. Under Article 215 CCiv.P (see Ch. 16, Section VI A), the filing of the action is not complete until process is served. Consequently, prescription is interrupted as of that moment. This interruption is deemed never to have occurred if the plaintiff abandoned the action, or the action was dismissed on grounds other than on the merits. However, the plaintiff may retroactively regain the lost interruption by refiling the action within six months (Art. 263 CC). When prescription is interrupted, the time that has run before is not counted. Prescription commences to run anew from the last day of interruption (Art. 270 CC). 4.

Extension, Reduction, Renunciation

Prescription may be validly renounced after accrual (Art. 276 CC), but not before. Because the rules of prescription are jus cogens, Greek law considers void any juridical act purporting to exclude, shorten, or prolong prescription, or to make its terms more or less onerous (Art. 275 CC). The only exception made to this important rule by Greek judicial practice pertains to warranty clauses in contracts of sale by which the seller warrants the product for a time longer than the applicable prescriptive period. 5.

Accrual

Upon accrual of prescription, the obligor may refuse performance. However, because a natural obligation survives the accrual of prescription, subsequent payment by the obligor is not considered as payment of ‘a thing not due’.

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Consequently, the obligor may not demand the return of the payment. For the same reasons, a written acknowledgment of a prescribed debt or the giving of security after accrual is enforceable (Art. 272 CC). Unlike peremption (Art. 280 CC), the defense of prescription may not be raised by the court on its own motion (Art. 277 CC) but must be pleaded by the obligor. If the obligor renounces or fails to plead prescription, his creditors or other persons with an interest may plead prescription on his behalf (Art. 278 CC). The general prescriptive period is 20 years (Art. 249 CC). However, this prescription applies only when the law does not provide otherwise, such as when it declares certain claim to be imprescriptible (see Art. 248 CC) or when it establishes a shorter prescription (see e.g. Art. 250 CC containing a long list of claims subject to a five-year prescription). BIBLIOGRAPHY The following are standard treatises on the General Principles of the Greek Civil Code. Unless otherwise indicated, all of them are in Greek: P. Agallopoulou, Basic Concepts of Greek Civil Law (translated into English by Y. Kotsovolou-Masry, Athens-Komotini, 2005). K. Asprogerakas-Grivas, General Principles of Civil Law (Athens, 1981). G. Balis, General Principles of Civil Law (8th edn, Athens, 1961). I. Deliyannis, Notes on Civil Law, vol. I (Thessaloniki, 1976). P. Filios, General Principles of Civil Law, vol. I (Athens-Komotini, 2001), vol. II (Athens-Komotini, 2002). K. Fourkiotis, General Principles According to the Civil Code (Athens, 1946). A. Gasis, General Principles of Civil Law, vols A–C (Athens, 1970–1974). A. Georgiadis, General Principles of Civil Law (3rd edn, Athens-Komotini, 2002). M. Karassis, General Principles of Civil Law, vol. I: Juridical Acts (AthensKomotini, 1996). G. Mantzoufas, General Principles of Civil Law, vols I–II (Athens, 1954–1957). N. Papantoniou, General Principles of Civil Law (3rd edn, Athens, 1983). D. Papasteriou, General Principles of Civil Law, vol. 1a (Thessaloniki, 1994), vol. 1b (Thessaloniki, 1998). T. Papazissi, General Principles of Civil Law (2nd edn, Thessaloniki, 2004). K. Simantiras, General Principles of Civil Law (4th edn, Athens-Komotini, 1988). J. Spyridakis, General Principles (2nd edn, Athens-Komotini, 2004). A. Toussis, General Principles of Civil Law (2nd edn, Athens, 1978). B. Vathrakokoilis, Civil Code Interpretation and Case law, vol. A: General Principles (Athens, 2001).

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The following are article-by-article commentaries on Book I of the Civil Code dealing with General Principles: A. Georgiadis and M. Stathopoulos, Civil Code. Article-by-Article Commentary, vol. I: General Principles (Athens, 1978). A. Papachristou, General Principles of the Civil Code. Article-by-Article Interpretation (Athens, 1979). J. Spyridakis and E. Perakis, General Principles of Civil Law (2nd edn, Athens, 1978). Various authors, Interpretation of the Civil Code (ErmAK) (Athens, 1952–1974; uncompleted). G. Vallindas, Civil Code. General Principles (Athens, 1946). D. Yiannopoulos, General Principles. Interpretation by Article, vols I–II (Athens, 1948).

Chapter 6

Law of Obligations Phoebus Chr. Christodoulou*

I.

GENERAL PRINCIPLES

A.

SOURCES OF OBLIGATION

The Greek law of obligations (ενοχικό δίκαιο, enochiko dikaio) covers contracts in general, specific contracts, negotiorum gestio, community, torts and unjust enrichment. The making of a contract creates a duty to perform; the commission of a tort creates a liability to pay reparations; unjust enrichment creates an obligation to make restitution. The Greek legal system assumes, by abstraction and generalization, that all these obligations have certain common elements and that contract, delict and unjust enrichment are the main sources of obligation. Thus, the law is constructed upon a framework of rights and legal relations, whereby obligation (ενοχή, enochi) is the fundamental category. It is defined as a legal bond by which a person (οφειλέτης, ofeiletis; the debtor) is compelled to render performance (παροχή, parochi) to another (δανειστής, daneistis; the creditor; Art. 287 CC). The effect of an obligation is that the creditor is entitled to claim performance from the debtor. Performance may also consist in refraining from acting. *

Professor of Law (emer.), University of Athens; General Counsel, Bank of Greece.

Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 103–152. © 2008, Kluwer Law International BV, The Netherlands.

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The concept of obligation comprises not only the owing of a debt, or a performance, but also the liability (ευθύνη, euthyni) for not paying or not discharging it. Thus, in case of non-performance, a creditor has in the first place the right to bring an action for performance and to obtain a judgment ordering the debtor to fulfill it. In last resort, the debtor’s liability entails the possibility of execution on his property and, exceptionally, on his person, pursuant to Articles 904–1054 CCiv.P (see Ch. 16, Section XIII). An obligation is a personal, not a real, right. The creditor can in principle pursue only the particular person of the debtor who has come under an obligation to him. B.

OBLIGATION TO PERFORM IN GENERAL

1.

Performance in Good Faith

The debtor is bound to perform in accordance with the requirements of good faith (καλή πίστη, kali pisti), also giving consideration to business usage (Art. 288 CC). Good faith is, thus, considered as the source of collateral duties and obligations which are implied in law. 2.

Rules Relating to Particular Kinds of Performance

(a)

Things Described by Class

If a person owes a thing that is not particular but described only by class (παροχή κατά γένος, parochi kata genos), there arises the problem of identifying the particular thing that must be given in performance. In case of doubt, the choice belongs to the debtor (Art. 289 I CC). The debtor is not bound to furnish things among the best of the class nor is he entitled to furnish things among the worst of the class (Art. 289 II CC). If the debtor, for the purpose of performance, separates a particular thing from the class, his obligation is limited to that thing only after the creditor has been in default of acceptance, or after the debtor has delivered the thing to be dispatched to a place other than the place of performance, at the request of the creditor (Art. 290 CC). (b)

Promises in Money

The Civil Code does not contain provisions relating to the national currency. As of January 1, 2001, the currency of Greece is the euro (EUR; see Art. 1 of Law 2842/2000).1 With regard to promises in money which are expressed in foreign currency and where the debt is payable within the country, the Civil Code provides that, 1.

By application of Council Regulation No. 1103/97 of June 17, 1997 on certain provisions relating to the introduction of the euro, OJ L 162/1–3, 1997, Council Regulation No. 974/98 of May 3, 1998 on the introduction of the euro, OJ L 139/1–5, 1998, and Council Regulation No.

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subject to an agreement to the contrary, the debtor has the right to make payment in euros at the current exchange rate (Art. 291). During default, the creditor is entitled to interest. If it is the creditor who is in default, the debtor shall not bear the burden of any supervening increase in the value of the foreign currency (Art. 292). (c)

Interest

As regards interest (τόκος, tokos), the Civil Code adopted a theory of rate regulation providing that the rate of interest shall be fixed and that ceilings for the maximum finance charge shall be set by separate statutes. Any agreement relating to interest exceeding the legal ceiling shall be void with regard to the excess interest only (Art. 294 CC). Commissions and other recompense agreed upon or paid in addition to interest are, for the purpose of rate regulation, deemed to constitute part of the interest (Art. 293 CC). Currently, rate regulation takes place by resolution of the Council of Ministers2 and is being based on the actual rate of interest applicable on the marginal lending facility available at the Bank of Greece.3 Thus: (i) The annual rate of interest which may be due by express agreement on contract debts (ποσοστό του εκ δικαιοπραξίας τόκου, pososto tou ek dikaiopraxias tokou) cannot exceed by more than 5 per cent the actual rate of interest applicable, at the time of such agreement, on the marginal lending facility of the Bank of Greece. Such ceiling does not apply on the interest rate charged by credit institutions on loan agreements or on other financial transactions.4 (ii) The annual rate of moratory interest (τόκος υπερημερίας, tokos yperimerias), recoverable when a payment of money has been delayed or wrongfully withheld, cannot exceed the rate of interest due by agreement by more than 2 per cent. Specifically with regard to ‘commercial transactions’,5 the level of interest which the debtor is obliged to pay in case of late payment shall be the sum of the interest rate applied by the Bank of Greece to its most recent main refinancing operation6 carried out before

2. 3. 4. 5. 6.

2866/98 of December 31, 1998 on the conversion rates between the euro and the currencies of the Member States adopting the euro, OJ L 359/1–2, 1998. Such resolution of the Council of Ministers is issued under the authorization contained in Article 15 IV of Law 876/1979, as modified and adapted by Law 2842/2000. The marginal lending facility is a standing facility of the Eurosystem, whose counterparties may, at their own initiative, receive overnight credit from a national central bank at a pre-specified interest rate against eligible assets. See Resolution No. 178/3/19 July 2004 of the Committee on Prudential Supervision and Financial Matters of the Bank of Greece. In the sense of Directive 2000/35 of the European Parliament and of the Council of June 29, 2000 on combating late payment in commercial transactions, OJ L 200/35–38, 2000, as adopted by Presidential Decree 166/2003. Main refinancing operation is a regular open-market operation executed by the Eurosystem in the form of a reverse transaction. Main refinancing operations are conducted through weekly standard tenders and normally have a maturity of one week.

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Phoebus Chr. Christodoulou the first calendar day of the half-year in question, plus at least 7 per cent, unless the rate of moratory interest is more favorable to the creditor.7 Moratory interest is due as damages for default in money debts. It functions as a statutory pre-estimate of the creditor’s loss. A claim for further positive damage is not excluded (Art. 345 CC; see also below, Section II L). (iii) The annual rate of interest due by legal implication or by statute (ποσοστό του νομίμου τόκου, pososto tou nomimou tokou) cannot exceed by more than 7 per cent the actual rate of interest on the marginal lending facility of the Bank of Greece.8 (iv) An agreement that interest overdue and unpaid shall again bear interest (compounding) (ανατοκισμός, anatokismos) is valid only if it refers to overdue and unpaid interest of at least one year, and if it is concluded after the expiration of the year. Saving banks, credit institutions and banks may provide in their articles of association, or agree in advance, that uncollected interest on deposits shall be considered as a new interest-bearing deposit (Art. 296 CC).9

(d)

Reparations

A person who is obligated to pay reparations (αποζημίωση, apozimiosi) must do so in money (Art. 297.1 CC). Nevertheless, the court, by taking special circumstances into consideration, may order restitution to be made in kind in so far as this is not contrary to the interest of the creditor (Art. 297.2 CC). Reparations shall include the decrease in the existing property of the creditor (θετική ζημία, thetiki zimia; positive damage) as well as lost profit (διαφυγόν κέρδος, diafygon kerdos). ‘Lost profit’ is deemed to be the profit anticipated in probability according to the ordinary course of events or the special circumstances, particularly in light of preparations and arrangements made (Art. 298 CC). Reparations in money for non-pecuniary damage are due only in cases provided for by law (Art. 299 CC). If any fault of the injured party has contributed to causing the damage or to the extent thereof, the court may deny or reduce the amount of reparations. This applies also where the injured party omitted to avert or mitigate the damage. This rule equally applies to the fault of persons for whom the injured party is responsible (Art. 300 CC). (e)

Obligation to Render Account Obligation to Provide Inventory

Whoever has the management of an affair belonging, in whole or in part, to another and involving receipts and payments is obligated to render an account 7. Article 8 of Presidential Decree 166/2003. 8. Resolution 1/14 January 2000 of the Council of Ministers. 9. Articles 110–112 of the Introductory Law to the Civil Code provide for further exceptions to the restrictions relating to compounding interest.

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(Art. 303 CC). Whoever is obligated to deliver a mass of objects or to give information about such a mass, e.g. about its contents, shall provide an inventory (Art. 304 CC). (f)

Alternative Obligations

If two or several acts of performance are due of which only one may be demanded (διαζευκτική ενοχή, diazeuktiki enochi), the right to choose belongs, in case of doubt, to the debtor (Art. 305 CC). The choice is made by declaration to the other party (Art. 306 CC). The effect of the choice is that the obligation is limited to the performance chosen, which then becomes the only performance due (Art. 307 CC). If one of the acts of performance becomes impossible, the obligation is limited to the other acts of performance (Art. 310 CC). 3.

Part-performance

A debtor is not entitled to make part-performance (Art. 316 CC). 4.

Performance by Third Parties

Performance may be made through third party, unless the creditor has an interest in performance by the debtor himself (Art. 317 CC). But the creditor is not bound to refuse the performance offered by a third party only because the debtor objects (Art. 318 CC). If the creditor levies execution upon an object belonging to the debtor, any person who incurs the danger of losing a right in the object or the possession of the object through such execution is entitled to satisfy the creditor, in which case the claim is transferred to him (Art. 319 CC). 5.

Place for Performance

If a place for performance is neither fixed nor can be deduced from the circumstances, performance shall be effected at the place where the debtor had his residence at the time the obligation arose. If the obligation arose in the course of the debtor’s business, his place of business is substituted for his residence (Art. 320 CC). If performance consists in the payment of money, the debtor is bound to make payment at the residence of the creditor at the time of payment. If the claim arose in the course of the creditor’s business, his place of business is substituted for his residence (Art. 321 CC). 6.

Time for Performance

If a time for performance is neither fixed nor can be deduced from the circumstances, the creditor may demand performance at once and the debtor may perform his part at once (Art. 323 CC). If a time is fixed, it is to be presumed, in case of doubt, that this is done in favor of the debtor. Therefore the creditor may not

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demand the performance before that time; the debtor may, nevertheless, perform earlier. If, however, he does so, he is not entitled to deduction of discount interest unless either the law or the juridical act provide otherwise (Art. 324 CC). If the debtor has a matured claim against the creditor arising from the same legal relationship upon which his own obligation is based, he may refuse to make the performance due by him until the performance due to him is made, unless a contrary intention appears from the relationship (Art. 325 CC). 7.

Responsibility for One’s Own Conduct

Unless otherwise provided, a debtor is responsible for any shortfall in the performance of his obligation resulting from willful misconduct (δόλος, dolos) or negligence (αμέλεια, ameleia) imputable to him or to his agents. A person who does not exercise ordinary care, as normally required in conducting business, acts negligently (Art. 330 CC). Liability thus depends on fault. With reference to imputability, the exceptions provided in Articles 915–918 apply (Art. 331 CC). A debtor may not be exempted in advance from responsibility for willful misconduct or for gross negligence. Any agreement to the contrary is void. Void is also any agreement excluding in advance a debtor’s responsibility even for slight negligence, if the creditor is an employee of the debtor, or if the responsibility arises from the conducting of an enterprise for which prior concession by the appropriate authority was granted to the debtor. Equally void is any exemption clause contained in a contractual term which has not been the object of specific negotiation and agreement. Equally not binding on the creditor is a clause exempting the debtor from liability in case of violating or encroaching upon any incident of the all-inclusive right of the creditor’s personality, such as life, health, liberty, or honor (Art. 332 CC). 8.

Responsibility for Employees

A debtor is responsible for the fault of the person whom he employs in performing his obligation (ευθύνη από πταίσμα του προστηθέντος, euthyni apo ptaisma tou prostithentos) to the same extent as for his own fault. In principle, such responsibility may be limited or excluded in advance, subject to the exceptions mentioned above under 7 (Art. 334 CC). C.

CONTRACTUAL OBLIGATIONS

The Civil Code places many rules regulating contract law, including those dealing with contract formation (Arts 185–196), under Book I on General Principles, in the context of juridical acts (Arts 127–200; see Ch. 5, Sections I, V). Book II on Obligations includes rules relating to some prerequisites for and limits to the creation of obligations by juridical act and to the effect of existing contracts. The rule that, unless otherwise provided by law, a contract is necessary for the creation of

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an obligation by juridical act, as well as for any modification of the substance of an obligation, is fundamental (Art. 361 CC). This rule is considered by legal writers as expressing the principles of private autonomy (ιδιωτική αυτονομία, idiotiki autonomia) and contractual freedom (ελευθερία των συμβάσεων, eleytheria ton symvaseon). These two principles are subject to certain limitations: Contractual freedom is limited by: (a) state intervention aiming at the regulation of the economy; and (b) the concept of protecting the weaker party in cases of striking inequality of bargaining power between the contracting parties. The Code itself contains certain special restrictions. For example, contracts whereby one party binds himself to assign his future property or to charge it with a usufruct, as well as contracts concerning the estate of a still living person, are considered void (Arts 366, 368). Additionally, special statutes dealing with particular situations sometimes limit private autonomy or contractual freedom. The exceptions to the general principle of informality in the making of contracts also operate in limiting party autonomy (Art. 158 CC). Thus, contracts concerning the creation, transfer, modification or extinction of real rights on land must be made in notarial form (Art. 369 CC; see Ch. 7, Section IV C in f.). The same goes for a contract assigning all present property or a fraction thereof (Art. 367 CC). If the performance of a party is to be determined by one of the contracting parties, it is presumed that the determination is to be made in an equitable manner. If the determination is inequitable or if it is delayed, it is made by the court (Art. 371 CC). A contract whereby the determination of a performance has been left to the absolute discretion of one of the contracting parties (but not of a third party) is void (Arts 372, 373 CC). D.

TWO-SIDED CONTRACTS

The rules governing two-sided contracts10 (αμφοτεροβαρείς συμβάσεις, amfoterovareis symvaseis), i.e. contracts containing mutual promises as contrasted to one-sided or unilateral contracts (e.g. those containing a promise to make gift), constitute applications of the idea of mutually dependent promises. In fact, they mainly prescribe the legal consequences of a disturbance in the performance due by one of the parties upon the obligation of the other party to counter-perform. In particular, they refer to excuses for non-performance because of failure of counter-performance (Arts 374–378 CC); impossibility of performance (Arts 380–382 CC); delay in performance (Arts 383–385 CC); the collapse of the basis of the transaction (Art. 388 CC); installment contracts (Art. 386 CC); and the availability of the remedy of equitable compensation for non-performance, in addition to rescission, in cases where the law prescribes rescission as a remedy for impossibility or default in the performance of a two-sided contract (Art. 387 CC). These rules will be dealt with in connection to the problems of non-performance of obligations (see E below). 10. Also known under such terms as reciprocal, mutual, bilateral, or synallagmatic contracts.

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Article 330 CC (see above, B 7) develops a unitary concept of non-performance of obligations. However, it contemplates in general terms only two categories of nonperformance, regulating them in detail: impossibility of performance and delay. Other possible defects in performance are treated in the context of certain specific contractual regimes such as sale, contract for work and lease. Before dealing with the modalities of non-performance, it is useful to briefly refer to the claim to performance and its enforcement. 1.

Claim to Performance in Kind

The primary legal remedy for non-performance is a claim to performance in kind. It is of the very essence of an obligation that it is actionable in this sense. But a party to a two-sided contract may refuse to perform his part until the other party has performed or has properly tendered his own part, unless the former party is bound to perform his part first (Art. 374 CC). If one party brings an action for the performance due to him, the other party’s right to refuse performance until counter-performance has been made, has the effect that judgment is to be delivered against the other party for contemporaneous performance (Art. 378 CC). A judgment ordering the debtor to perform his obligation can be rendered only if performance is still possible; otherwise, the creditor may only bring an action for damages (see below, under 2). What if the creditor does not know or cannot prove that performance by the debtor is impossible? The legislator assumes that, in such a case, the creditor will normally bring an action for performance, as he is always entitled to. Article 339 CC provides that a creditor who has obtained a final judgment ordering performance may fix a time within which performance by the debtor must be forthcoming, with a declaration that he refuses to accept performance after the expiry of the period. Thereafter, the plaintiff may forthwith institute a claim for damages. 2.

Impossibility

The Civil Code treats both initial and subsequent impossibility of performance (αδυναμία παροχής, adynamia parochis) in the same way. The important question is who is to blame for this impossibility. If it is the debtor, he is liable to pay damages (Arts 335, 336, 362–365, 382 CC); if it is the creditor, the debtor is freed and may even be able to demand what was promised to him (Art. 381.1 CC); if neither party is responsible for the impossibility of performance, both are freed from obligation (Arts 336, 363, 380 CC). The general rule is that the debtor who fails to perform is liable, unless he proves that he is not responsible for the impossibility of performance. Each party must answer for lack of due care on his part or on the part of those who were assisting him to perform (Arts 330, 334 CC). In relation to initial impossibility or illegality of performance, the debtor is freed from any obligation only if he proves

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that he, without fault, did not know of the impossibility (Art. 363 CC) or illegality (Art. 365 CC) of the performance. An important qualification to this general rule applies to debts described by class (see above, B 2 (a)). According to Article 290 CC, the debtor’s obligation is not limited to a particular thing until he has placed the creditor in default. Therefore, until that time, he is not freed from his duty to perform even if he and his assistants are entirely blameless, unless the entire genus to which the object of the obligation appertained has been destroyed. So, in practical terms, the effect of a debt described by class is that the debtor guarantees his ability to supply goods of the promised class when the time for delivery arrives. The problem of altered circumstances (απρόοπτη μεταβολή των συνθηκών, aproopti metavoli ton synthikon): Greek courts and legal writers accept the doctrine that a debtor might be exceptionally released from an obligation which was not wholly impossible to perform if, as a result of an unforeseeable event, performance would involve quite exceptional financial or moral hardship that went beyond the call of duty. Exceptional hardship might thus be treated as impossibility for which the debtor is not answerable. Pursuant to Article 388 CC, this doctrine is qualified as regards two-sided contracts. The above article reads in part as follows: If the circumstances under which the parties, having regard to good faith and business usage, mainly based a two-sided contract, subsequently changed for extraordinary and unforeseeable reasons, and if, as a result of this change, fulfillment of the obligation, taking into account the counter-obligation, became inordinately onerous for the debtor, the latter may request the court to reduce his obligation at its discretion to a suitable extent, or to rescind the whole contract or the part not carried out. In this way, the courts are entrusted with the sweeping power to not only rescind the contract but also to let the contractual relationship continue, while modifying the terms of the contract to adjust them to the changed circumstances. The Civil Code contains provisions authorizing unilateral termination for cause of long-term agreements such as leases, partnership agreements and employment contracts. Such termination for cause is possible by notice before the end of the term agreed-upon. Provisions of this kind ordinarily refer to particular types of contracts. However, legal writers have developed – and the courts have adopted – the broader principle that all long-term contractual relationships may be terminated by either party before the end of the agreed period of the contract, if substantial reasons justifying such premature termination can be shown. 3.

Delay

If the promise can be performed but has not been performed in a timely manner, two issues arise: (a) whether the creditor can demand compensation for the damage which the delay has caused him; and (b) whether he can withdraw from the contract and refuse to accept late performance. A claim for damages for lateness in performance may be brought only if the debtor is in ‘default’ (υπερημερία οφειλέτη, yperimeria ofeileti). In order to put

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the debtor in default after performance has fallen due, the creditor must make a protest (όχληση, ochlisi; Art. 340 CC); this protest activates the default mechanism, unless the debtor can prove that lateness of performance is attributable to a circumstance for which he is not responsible (Art. 342 CC). If the contract fixes a date for performance, protest is not necessary in setting the debtor in default (Art. 341 CC). Although setting the debtor in default allows the creditor to claim damages for delay, in principle it does not free him from the duty to accept performance, late though it may be. If the creditor does not desire the performance because of the default, he may refuse it and demand reparations for non-performance (Art. 343 II CC). In a two-sided contract, the creditor may rescind the contract or claim damages for non-performance only if he fixes a time limit during which the defaulting debtor must discharge performance, and states that he will refuse to accept performance after the expiry of such time limit (Art. 383 CC). No such time limit need be fixed if the delay has deprived the eventual performance of any interest for the creditor (Art. 385 CC). In a two-sided contract, neither protest nor time limit is required if it was agreed that performance was to be made exclusively at a fixed time or exclusively within a fixed time limit. It is then to be inferred that the creditor shall be entitled to rescind by the mere reason of delay, irrespective of whether the debtor is at fault (Art. 401 CC). 4.

Other Cases of Breach of Contract

Everyday life reveals a variety of situations of non-performance of obligation or breach of contract which do not fit comfortably within the categories of impossibility and delay, e.g. defective performance, violation of contract duties other than a principal contract obligation, culpable breach of contract duties of care causing personal injury or property damage to the other party, etc. In such cases, the courts have had no hesitation in recognizing that the complaining party was aggrieved and is entitled to seek an appropriate form of relief. This effect derives from a general principle that legal writers establish not merely with regard to Article 330 CC, but rather on the whole set of rules concerning impossibility of performance and delay. According to this principle, a debtor is responsible for any (even partial) defect in performance of his obligation and for any violation of contract duty resulting from willful misconduct or negligence imputable to him or his agents or the persons he employs in the performance of his obligation. As regards the forms of relief, the courts apply by analogy the provisions relating to impossibility and delay. In this respect, the distinction between material and non-material breach is quite important. Material is a breach that imperils the whole purpose of the transaction in such a way that the innocent party cannot be expected to continue with the contract and perform his own obligation under it. The innocent party is then entitled to withdraw from the contract or claim damages for non-performance of the whole contract, as provided by Articles 383–387 CC. A minor breach gives the aggrieved party the right to merely demand reparations for the damage resulting therefrom.

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Default of the Creditor

A creditor is in default if he does not accept the performance tendered to him (υπερημερία δανειστή, yperimeria daneisti). The tender must be effective and appropriate (Art. 349 CC). If the co-operation of the creditor is necessary, the creditor is in default if, although invited by the debtor, he does not perform the necessary act (Art. 351 CC). If the debtor is bound to perform his part only upon counter-performance by the creditor, the creditor is in default if, although prepared to accept the performance tendered, he does not offer the required counter-performance (Art. 353 CC). If the time of performance is not fixed, the creditor is not in default for reason of being temporarily prevented from accepting the performance offered, unless the debtor has given him notice of his intended performance a reasonable time beforehand (Art. 354 CC). Default of the creditor in itself does not, as a rule, relieve the debtor of his obligations; the latter must remain able and willing to perform. The debtor has the alternative of making a public deposit of the thing owed or its value (Arts 427– 429, 431 CC). During the default of the creditor, the debtor is not responsible for slight negligence (Art. 355 CC) and does not have to pay interest on a money obligation. The debtor is entitled to demand compensation for any additional expenses he had to incur for the ineffective tender of performance and for the safekeeping and maintenance of the object due (Art. 358 CC). F.

CONTRACTUAL RESCISSION

Apart from rescission (υπαναχώρηση, ypanachorisi) provided by law as a remedy for non-performance (as, e.g. in Arts 382–387 CC), it is permissible in a two-sided contract for a party to reserve for himself the right of rescission (Arts 389–401 CC). The effect of rescission is that the mutual obligations arising from the contract are extinguished and the parties are obligated to return to each other whatever they received, pursuant to the provisions related to unjust enrichment (Art. 389 CC; see below, Section III). If such restitution is, for any reason whatsoever, no longer possible, the right of rescission is barred (Arts 391–394 CC). Rescission is effected by declaration to the other party (Art. 390 CC). The same rules apply by analogy to ‘legal’ rescission (Art. 387 II CC). G.

EARNEST AND PENALTY CLAUSE

1.

Earnest

If, upon entering into a contract, something is given as earnest (αρραβώνας, arravonas), this is deemed to have been given in order to cover the loss resulting from non-performance of the contract (Art. 402 CC). If the giver is responsible for non-performance, the holder of the earnest is entitled to retain it. If the holder

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is responsible for non-performance, he is bound to pay back double the earnest received. Liability for further damages is not excluded (Art. 403 CC). Upon performance of the contract, the earnest is to be deducted from the price or, if this is not possible, to be returned. 2.

Penalty Clause

A contract may contain a stipulation providing for the payment of a fixed amount of money or for a performance other than the payment of money by the debtor in the event of his default (ποινική ρήτρα, poiniki ritra). If performance of the principal obligation becomes impossible as a result of an event for which the debtor is not responsible, liability to pay the penalty is discharged. But the penalty shall be due even if the creditor has not suffered any loss (Art. 405 CC). A contract with a penalty clause does not create an alternative obligation. Thus, the debtor is not discharged by paying the penalty instead of performing his principal obligation. However, a contract might be expressed in such a way as to clearly give the debtor the option of either performing or withdrawing from the contract upon payment of a forfeit (Art. 398 CC). If the debtor has promised the penalty in the event of non-fulfillment of his obligation, the creditor may demand the forfeited penalty in lieu of fulfillment. The forfeited penalty is then deemed as the minimum amount of the damage, further damages not being excluded (Art. 406 CC). If the debtor has promised the penalty in the event of non-performance of his obligation in the appropriate manner, especially not in due time, the creditor may demand the forfeited penalty in addition to performance, further damages not being excluded (Art. 407 CC). Finally, if the penalty agreed upon is disproportionately high, it may be reduced to the appropriate level by court decision. Any agreement to the contrary is not valid (Art. 409 CC). H.

CONTRACT FOR THE BENEFIT OF THIRD PARTIES. CONTRACT BURDENING THIRD PARTIES

In principle, a contract creates rights and duties only for and against the immediate parties thereto. A contract may, however, stipulate performance for the benefit of a third party, so that the promisee may demand performance in favor of the third party (σύμβαση υπέρ τρίτου, symvasi yper tritou; Art. 410 CC). Nevertheless, the third party does not acquire the right to directly demand performance from the promisor unless the parties so intended, or unless such effect is deduced from the nature and the purpose of the contract (Art. 411 CC). If the third party declares to the promisor that he will exercise the right acquired under the contract, the promisee cannot release the promisor from his obligation (Art. 412 CC). Defenses arising from the contract are available to the promisor even against the third party (Art. 414 CC). A person who promises to another by contract that a third party will furnish a performance is, unless a different conclusion can be deduced from the contract, liable to the promisee if the third party refuses to perform (Art. 415 CC).

Law of Obligations I.

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EXTINCTION OF OBLIGATIONS (απόσβεση ενοχών, aposvesi enochon)

Under this heading, Book II, Chapter 9 of the Civil Code provides six ways in which an obligation may be discharged: (a) fulfillment (Arts 416–426); (b) deposit (Arts 427–435); (c) novation (Arts 436–439); (d) set-off (Arts 440–452); (e) merger (Art. 453); and (f) release (Art. 454). 1.

Fulfillment

Obligation is not an end in itself; it is rather the legal means to the end of attaining performance. Therefore, effecting the performance owed to the creditor (καταβολή, katavoli) is the normal way of discharging an obligation (Arts 416, 417 I CC). Performance to be valid as fulfillment should be the performance due. If the creditor has accepted as fulfillment an act of performance offered as such, the burden of proof is upon him, if he asserts that the act of performance had not been appropriate (Art. 418 CC). The creditor is not bound to accept in lieu of fulfillment another performance than the one due. If, however, he accepts such performance, the obligation is extinguished (Art. 419 CC). If, for the purpose of satisfying the creditor, the debtor assumes a new obligation toward him, it is not presumed that he assumes the obligation in lieu of fulfillment unless there is a clear indication to the contrary (Art. 421 CC). If the debtor owes several debts to the creditor, the debtor is entitled, upon effecting performance, to specify the debt that is discharged. If the debtor makes no specification, the sequence in which the effected performance shall be applied to each of the existing debts is provided by law (Arts 422, 423 CC). Upon effecting performance, the debtor is entitled to demand from the creditor, at the latter’s cost, a written acknowledgment of receipt and, in the case of total fulfillment, also to demand the return of the document of indebtedness. Such return gives rise to a legal presumption that the debt has been discharged (Art. 424 CC). 2.

Deposit

In case the creditor is in default of acceptance (Art. 427 CC), or in case the debtor cannot fulfill his obligation for reasons affecting the creditor personally, or in consequence of uncertainty concerning the identity of the creditor (Art. 434 CC), the debtor is entitled to deposit what is due with the appropriate public authority (δημόσια κατάθεση, dimosia katathesi), provided that it consists of money or other things susceptible of deposit. If the thing owed is a movable that is not suitable for deposit, the debtor may sell it by public auction (Art. 1021 CCiv.P) for the creditor’s account and deposit the proceeds. The auction is not allowed until after the creditor has been warned. The warning may, under certain circumstances, be dispensed with (Art. 428 CC). If the thing has an exchange or market price, its sale may be effected without auction by authorization of the court (Art. 425 CC). The deposit shall be made at the competent authority of the place where performance

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is to be made (Art. 430 CC). The debtor shall without culpable delay notify the creditor of the deposit unless such notification is unduly difficult. Through public deposit, the obligation is discharged as if the debtor had performed at the time of deposit (Art. 431 CC). The creditor is entitled to demand the thing deposited at any time directly from the public authority. If the debtor is bound to perform only after counter-performance by the creditor, the debtor may make the right of the creditor to receive the thing deposited dependent upon counter-performance by the latter (Art. 432 CC). So long as the creditor does not declare his acceptance to the deposit office, the debtor has the right to withdraw the thing deposited. The right of withdrawal is subject neither to attachment nor assignment (Art. 433 CC). The costs of deposit and auction or sale are borne by the creditor, unless the debtor withdraws the thing deposited (Art. 435 CC). If the thing owed is an immovable, and if the creditor is in default, the debtor may, after having warned the creditor, request the court to appoint a receiver. As soon as the receiver takes possession of the immovable, the debtor’s obligation is discharged. The same rule applies if, for any other reason affecting the creditor personally or as a result of uncertainty concerning the identity of the creditor, the debtor cannot fulfill his obligation with certainty. The receiver has the rights and obligations of a custodian (Art. 359 CC; see below, Section II M; Arts 831–839 CC). 3.

Novation

An obligation is extinguished if, by means of a contract aiming at its abrogation, it is replaced by a new obligation involving either the same parties or a different debtor or a different creditor (ανανέωση, ananeosi; Art. 436 CC). In order for the contract to be valid as novation, a clear indication of intention that the former obligation is abrogated and replaced by the new one is required (Art. 438 CC). In the absence of such indication of intention, it is in conformity with contemporary common usage that the former obligation is not extinguished but remains valid along with the one arising from the subsequent contract. Securities attaching to the former obligation are maintained in favor of the new obligation only if the guarantor or the owner of the thing mortgaged or pledged have given their consent thereto (Art. 439 CC). 4.

Set-off

If two persons mutually owe acts of performance of the same kind, either party may set off his claim against the claim of the other party as soon as he can demand the performance due to him and effect the performance due by him (συμψηφισμός, sympsifismos; Arts 440, 324.1 CC). A creditor who has granted his debtor a period of grace is not prevented thereby from setting off his claim (Art. 445 CC). Prescription does not exclude set-off if the claim barred had not been prescribed at the time during which the two claims coexisted (Art. 443 CC). Set-off is made by declaration to the other party. The declaration is ineffective if made subject to any condition or limitation (Art. 444 CC). The effect of the

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set-off is that the mutual claims, insofar as they cover each other, are deemed to have expired as from the moment they coexisted (Arts 440, 441 CC). Additionally, the guarantor may set off the claim of the debtor against the creditor but the debtor may not set off a claim of the guarantor against the creditor (Art. 447 CC). Set-off is permissible neither against a claim which is not subject to attachment (Art. 451 CC) nor against a claim arising from willful delict (Art. 450 CC). 5.

Merger

An obligation is discharged by merger if, subsequent to its creation, the functions of creditor and debtor thereof unite into one and the same person (σύγχυση, synchysi). The obligation revives when such unification ceases to exist (Art. 453 CC). 6.

Release

An obligation expires either if the debtor is released therefrom by agreement with the creditor or if the creditor acknowledges by contract with the debtor that the obligation does not exist (άφεση χρέους, afesi chreous; Art. 454 CC). In both cases, the contract of release doesn’t have the effect of a mere promise but rather of a disposition or alienation on the part of the creditor. The contract of release is treated as abstract, i.e. defects in the underlying obligational transaction do not affect the release. J.

ASSIGNMENT OF CLAIMS

In principle, a claim is transferable. Transfer is effected by means of a contract of assignment (εκχώρηση, ekchorisi). Under Article 455 CC, the claim passes to the assignee by the contract of assignment without consent of the debtor being required. As against the debtor and other third parties, however, the assignee becomes entitled to the claim only when either he or the assignor so notifies the debtor (Art. 460 CC). The debtor who pays the assignor without knowing of the assignment is discharged (Art. 461 CC). It should be noted that Greek law treats the assignment of a claim as a conveyance; defects in the underlying obligational transaction do not affect the validity of the transfer. Towards the assignee, the debtor has all the obligations that he had towards the assignor (Art. 462 CC). Similarly, the debtor may assert against the assignee all defenses that were in existence against the assignor at the time he was notified of the assignment (Art. 463 CC). The assignor is not liable for the solvency of the debtor towards the assignee (Art. 468 CC). In principle, he is only liable for the existence of the claim (Art. 467 CC). As regards factoring contracts, assignment of the claims to the factor by the principal is one of the juridical tools which render the contract of factoring functional.11 11.

See Article 1 I of Law 1905/1990.

118 K.

Phoebus Chr. Christodoulou ASSUMPTION OF DEBT

A third party may, by agreement with the creditor, assume the debt, which has the effect of releasing the debtor. The creditor may thereafter enforce his claim only against such party (αναδοχή χρέους, anadochi chreous; assumption of debt stricto sensu; Art. 471 CC). For this legal effect to be achieved, a clear indication of intention is required. In the absence of such indication, the debtor is not released but an additional obligation arises so that the creditor may enforce his claim against the third party as well (Art. 477 CC). This means that the debtor and the third party are joint debtors within the meaning of Article 481 CC, i.e. they are liable jointly and severally (see below, under L). A promise, however, by a third party to the debtor that the former will pay the latter’s debt does not, in case of doubt, give to the creditor any right against the promisor (Art. 478 CC). If by agreement a person takes over another’s entire property or enterprise, any creditor of the latter may, after conclusion of the contract, enforce his then existing claims against such successor up to the value of the assets of the property transferred. Liability of the former owner continues to exist (Art. 479 CC). In case of an assumption of debt stricto sensu, the person assuming the debt has the same obligations towards the creditor as the former debtor (Art. 472 CC). He may raise against the creditor all defenses arising from the legal relationship between the creditor and the former debtor but he may not set off a claim belonging to the former debtor (Art. 473 CC). Rights accessory to the claim continue to exist after the assumption. However, guaranties, pledges and mortgages are maintained only with the consent of the guarantor or the person to whom the object pledged or mortgaged belongs (Art. 475 CC). L.

JOINT AND SEVERAL OBLIGATIONS AND CLAIMS

The several obligations, the joint and several obligations (ενοχή εις ολόκληρον, enochi eis olokliron) and the joint (or entire) obligation are the possible forms of construction utilized by the Civil Code in cases of plurality of parties to an obligation. The main rule is that when performance is divisible, in case of doubt, the obligation is only several (Art. 480 CC). Liability is joint and several when several persons owe the same performance in such a manner that each is liable to effect the whole performance but the creditor is entitled to demand the performance only once (Art. 481 CC). The creditor may demand the performance at his option from any one of the debtors, in whole or in part. Until the whole performance has been effected, all debtors remain bound (Art. 482 CC). Fulfillment of the obligation by one co-debtor is effective as towards the creditor in favor of the other debtors. The same applies to any act of performance in lieu of fulfillment, such as deposit and set-off (Art. 483 CC), to creditor’s default towards one co-debtor (Art. 485 CC) and, under certain circumstances, to release agreed upon between the creditor and one co-debtor (Art. 484 CC). Other facts are in principle effective in favor of, and may be asserted against, only the

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co-debtor to whom they particularly refer (Art. 486 CC). As between themselves, co-debtors are liable in equal shares unless the relationship indicates otherwise. If the contribution due from one of the co-debtors cannot be obtained from him, the deficiency shall be borne by the other debtors who, as towards the co-debtor who has paid, are bound to make up the difference (Art. 487 CC). A claim is joint and several if creditors are entitled to demand the same act of performance in such a manner that each can demand the whole performance though the debtor is bound to perform only once (Art. 489 CC). At his option, the debtor is entitled to perform in favor of any one of the creditors so long as one of the creditors has not brought an action for performance (Art. 490 CC). In case of fulfillment or extinction of the obligation towards one of the creditors, the rights of the other creditors against the debtor are extinguished. Default on the part of one co-creditor is also effective against the other creditors (Art. 491 CC). As among themselves, co-creditors are entitled to equal shares unless there is indication to a different effect (Art. 493 CC). If an indivisible performance is owed to several creditors and so long as, by virtue of law or by contract, the rights of the latter are not joint and several, the debtor may only perform in favor of all jointly and each creditor may demand the performance only in favor of all. A fact which affects only one creditor is effective neither in favor of, nor against, the other creditors (Art. 495 CC). II.

SPECIFIC CONTRACTS

In the portion of the Civil Code dealing with particular kinds of obligations (Book II, Chapters 13–36, Arts 496–900), the most frequently encountered types of contracts are specifically regulated. The Code does not attempt an exhaustive listing of contracts. Neither does the validity of any contract depend on its correspondence to any recognizable category. The parties may, in fact, agree between themselves to fashion their contractual relationship differently. Contractual freedom thus results in a great variety of non-typical contracts and particularly of mixed contracts. The need to furnish non-typical contracts with an apparatus of implied terms poses delicate problems of construction. In construing a contract, courts take into consideration the intention of the parties. Article 200 CC requires that construction be made ‘in accordance with good faith, taking account of business usage.’ Provisions governing particular contracts may, under certain circumstances, be applied by analogy to non-typical contracts. The Civil Code treats the types of particular contracts in a sequence that does not have the character of a logical arrangement. A systematic arrangement, preferred by several legal writers, would be to group the different categories of particular contracts according to their economic or practical function. In any case, the Code contains provisions on the following contractual relations: donation (Arts 496–512; see below, under A); sale and exchange (Arts 513–573; see below, under B); lease (Arts 574–618; see below, under C); usufructuary lease (Arts 619–647; see below, under D); contract for services (Arts 648–680; see

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below, under E); contract for work (Arts 681–702; see below, under F); brokerage contract (Arts 703–708; see below, under G); reward (Arts 709–712; see below, under H); mandate (Arts 713–729; see below, under I); negotiorum gestio (Arts 730–740; see below, under I); civil company (Arts 741–784; see below, under J); community (Arts 785–805; see below, under K); loan (Arts 806–809; see below, under L); gratuitous loan for use (Arts 810–821; see below, under C); deposit (Arts 822–833; see below, under M); liability of innkeepers (Arts 834–839; see below, under N); life annuity (Arts 840–843; see below, under O); gaming and betting (Arts 844–846; see below, under P); guaranty (Arts 847–870; see below, under Q); compromise (Arts 871–872; see below, under R); abstract promise or acknowledgment of debt (Arts 873–875; see below, under S); order to pay or deliver (Arts 876–887; see below, under T); bearer bonds (Arts 888–900; see below, under U); and production of things and documents (Arts 901–903; see below, under V). A brief survey of the code provisions pertaining to these relations follows. A.

DONATION

A disposition whereby a person confers out of his own property a benefit on another is a gift, if both parties agree that the disposition is made gratuitously (δωρεά, dorea; Art. 496 CC). For the validity of the contract, notarial authentication is necessary (Art. 498 CC). The donor is neither liable for slight negligence nor is he bound to pay interest for default; additionally, he is neither liable for defect in title nor quality in the thing given, unless he fraudulently conceals the defects or has promised that there will be no defects (Arts 499, 500 CC). The donor is entitled to refuse fulfillment of his promise insofar as fulfillment would endanger his or his family’s maintenance (Art. 501 CC). If the donation was made subject to burden, the donor may demand execution thereof, provided that he has executed the gift on his part (Art. 503 CC). Moreover, the donor may revoke the gift if the donee, by any serious misconduct towards the donor or a close relative of him, is guilty of gross ingratitude (Art. 505 CC). Revocation is effected by declaration to the donee (Art. 509 CC). The right to revoke is barred if the donor has forgiven the donee (Art. 510 CC). The donor may validly waive his right of revocation only after he has been informed of the ingratitude (Art. 511 CC). Gifts which are made out of moral duty or for common decency are not subject to revocation (Art. 512 CC). B.

SALE AND EXCHANGE

By the contract of sale (πώληση, polisi), the seller is bound to transfer ownership of the thing sold or to transfer the right sold and deliver the thing to the purchaser, and the purchaser is bound to pay the price agreed upon (Art. 513 CC). The contract of sale is the archetype of two-sided contracts. Things, objects, rights, any asset or group of assets may be sold. The price is expressed in terms of money. If,

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instead of money, another thing is owed, then the contract is not a contract of sale but one of exchange (ανταλλαγή, antallagi). The provisions relating to sale apply by analogy, each of the parties being deemed to be the seller with reference to the performance owed by him and to be the buyer with reference to the performance claimed by him (Arts 573, 562 CC). The seller is bound to transfer to the purchaser the thing or right sold free from rights enforceable by third parties against the purchaser (Art. 514 CC). If there are any such defects of title at the time of sale, the purchaser has all the rights that, in a two-sided contract, belong to the creditor in case the debtor is in default (Arts 516, 380–387 CC). The thing delivered must possess the qualities agreed by the parties and be free from defects (Art. 534 CC).12 The seller does not fulfill his obligation under Article 534 CC if what is delivered is not in conformity with the contract, in particular: (a) if it does not comply with the description given by the seller and does not possess the qualities of the goods which the seller had held out to the buyer as a sample or model; or (b) if it is not fit for any particular purpose for which the buyer requires it and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted; or (c) if it is not fit for the purposes for which goods of the same type are normally used; or (d) if he does not show the quality and performance which are normal in goods of the same type and which the buyer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made by the seller, the producer or his representative, particularly in advertising or on labeling, unless the seller shows that he was not and could not have been reasonably aware of the statement in question (Art. 535 CC). Any lack of conformity resulting from incorrect installation of consumer goods shall be deemed to be equivalent to lack of conformity of the goods, if installation forms part of the contract of sale of the goods and they were installed by the seller or under his responsibility. This shall apply equally if the product intended to be installed by the buyer has indeed been installed by him and the incorrect installation is due to a shortcoming in the installation instructions (Art. 536 CC). If, when the risk passes to the purchaser, the thing sold is not free from defects, or if it lacks the promised qualities, the seller is liable to the buyer, unless at the time the contract was concluded the buyer was aware of the lack of conformity, or if the lack of conformity has its origin in materials supplied by the buyer (Art. 537 CC). If not proved otherwise, any lack of conformity that becomes apparent within six months of delivery of the goods is presumed to have existed at the time 12. Articles 534–558 CC have been modified by Law 3043/2002 in conformity with Directive 1999/44 of the European Parliament and of the Council of May 25, 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L 171/12–16, 1999. However, their scope of application is not confined to consumer goods, but covers goods in general, movable or immovable. Their provisions are mandatory with regard to the rights of the buyer as far as the latter qualifies as a consumer in the sense of the abovementioned Directive. They can be modified by agreement insofar as the buyer is acting only for purposes related to his trade, business or profession.

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of delivery, unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity. If the seller is liable, the purchaser is entitled to demand either to have the goods brought into conformity by repair or replacement free of charge, unless this is impossible or disproportionate, or an appropriate reduction in the price, or to have the contract rescinded, unless the lack of conformity is minor (Art. 540 CC). Additionally, under certain circumstances, the seller has a right to replace the defective thing delivered with another that is free of defects (Art. 546 CC). The purchaser’s claims – if any – are prescribed five years after delivery for immovables, and two years for movables (Arts 554–561 CC). The risk of accidental destruction or deterioration passes to the purchaser upon delivery. With regard to real property, such risk passes to the purchaser at the time of recordation, if it takes place before delivery (Art. 522 CC). If, at the request of the purchaser, the seller dispatches the thing sold to a place other than the place of performance, the risk passes to the purchaser as soon as the seller has delivered it for dispatch (Art. 524 CC). Retention of title: if the seller carried out the contract and fixed a time for payment of the purchase price, he may not rescind the contract on the ground of delay in the payment of such price (Art. 531 CC). If, however, by special clause in the sale contract itself, the seller has retained title until payment of the purchase price, it is presumed, in case of doubt, that transfer of title to the purchaser takes place subject to the precondition of full payment of the purchase price, and that the seller is entitled, in case the purchaser is in default of payment, either to demand payment or to rescind the contract, thus retaining his property rights. In case of such retention, the purchaser bears the risk of destruction or deterioration of the thing as of the time of delivery (Art. 532 CC). It should also be mentioned that the Civil Code provides for the following particular types of sale: (a) sale on approval (Arts 563, 564); and (b) sale reserving a right of repurchase to the seller (Arts 565–572). C.

LEASE

A contract of lease is a two-sided contract whereby the lessor is bound to give to the lessee the use of the leased thing during the term of the lease, and the lessee is bound to pay to the lessor the rent agreed upon (μίσθωση πράγματος, misthosi pragmatos; Art. 574 CC). The object of the contract of lease is the use of a thing, not of a right; and only the use of such thing, not the enjoyment of its fruits. Lease contracts are valid regardless of form. A lease does not create any property rights. The lessor is bound to hand over the leased thing to the lessee in a condition appropriate for the use stipulated and to keep it in such condition during the term of the lease (Art. 575 CC). If the leased thing has a defect that destroys or diminishes its fitness for the stipulated use, or if a warranted quality is absent, the lessor is liable to the lessee. The latter is entitled to demand removal of the defect; and he is further entitled to a reduction or non-payment of rent (Art. 576 CC). If a warranted quality is absent at the time of entering into the contract, or if, at such time, the lessor knew of the defect, the lessee may demand compensation

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for non-performance (Arts 577, 578 I, 578 II 1 CC) instead of reduction or nonpayment of rent. If the lessor is in default, the lessee may himself remove the defect and demand compensation for the outlays (Art. 578 II 2 CC). The lessor is responsible in a similar way if the stipulated use of the leased thing is wholly or partly taken away from the lessee through the right of a third party. However, the lessee is not entitled to remove the defect in title himself at the expense of the lessor (Art. 583 CC). The lessor shall bear the charges and taxes imposed upon the leased thing (Art. 590 CC) and is obligated to compensate the lessee for any necessary expenses incurred for the thing (Art. 591 II CC). Rent is payable at the end of the term of lease; if it is calculated in time periods it is payable at the end of each such period unless different agreement or usage exists (Art. 595 CC). A lessee is not released from payment by the fact that he is hindered in the exercise of his right of use by a cause personal to himself (Art. 596 CC). The lessee is not entitled to use the thing leased in a way violating the contract (Art. 594 CC). He is also bound to return the thing after the termination of the lease and to restitute it in the condition in which he had taken it in possession (Art. 599 CC). However, he is not responsible for wear and tear brought about by stipulated use (Art. 592 CC). The lessor of a parcel of land has, by way of security of rent overdue and unpaid, a security interest over the things brought upon the premises by the lessee (or his wife and children, if they live with him), unless such things are not subject to attachment. Such interest may not be enforced in respect of rent due for a time period stretching more than two years prior to attachment (Art. 604 CC), and does not prejudice the rights of third parties in the things even if the lessor believed in good faith that they belonged to the lessee (Art. 605 CC). A lease terminates upon expiration of the agreed time (Art. 608 CC). If the term of the lease is not fixed, either party may give notice of termination. If a lease is entered into for a period longer than 30 years, or for the lifetime of one of the parties, either party may give notice of termination 30 years after conclusion of the contract (Art. 610 CC). If the lessee dies, his heir is entitled to give notice of termination, the term of such notice being at least three months (Art. 612 CC). Article 611 CC provides for an extension of the lease for an indeterminate term if the lessee continues to use the thing without the lessor being opposed thereto following expiration of its term. In the absence of an agreement to the contrary, the lessee is entitled to transfer the use of the leased thing to a third party, particularly to sublet the thing, in which case he is liable towards the lessor for the third party’s fault (Art. 593 CC). In case of alienation of the thing leased, the principle followed by the Civil Code is that ‘the sale does not break the lease’; the acquirer is in principle bound by the lease. With reference to leases of land the law makes, however, the following distinctions: (a) if the lease is evidenced by a document bearing a recorded date and no intention to the contrary is expressed therein, the acquirer is subrogated to the rights and obligations flowing from the lease; otherwise, the acquirer is entitled to terminate the lease by giving notice of one or two months, depending on whether the lease is for up to one year or more (Arts 614, 615 CC); and (b) a lease for a term lasting longer than nine years is effective against the acquirer only if it has been executed in notarial form and has been recorded (Art. 618 CC).

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Agreements entered into between the lessee and the lessor in respect of any claim of rent are effective against the acquirer to the extent that they do not relate to the rent for a time later than three months after the acquirer has notified the lessee of the transfer of ownership (Arts 616, 617 CC). Lease of living accommodations is a particular kind of lease applicable only to civil immovables in which a household is maintained. It is regulated by special legislation.13 Lease of professional accommodations is another particular kind of lease or usufructuary lease, whereby the lessee uses the property leased for the purpose of exercising his professional activities in the premises. It is also regulated by special legislation.14 The special legislation on living as well as on professional accommodations aims at awarding greater protection to the lessee in the matters of adaptation and termination of the contract. The Civil Code provisions apply in this respect only in a complementary manner. A lease differs from a gratuitous loan for use (χρησιδάνειο, chrisidaneio) in that, by the latter, the lender of a thing is bound to permit the borrower to use the thing gratuitously. The borrower is bound to return the thing lent upon expiration of the contract (Art. 810 CC). The lender is responsible only for willful misconduct and gross negligence (Art. 811 CC). The lender may demand the thing back before the expiration of the contract if he needs it due to unforeseen circumstances. Finance lease (χρηματοδοτική μίσθωση, chrimatodotiki misthosi) has received statutory recognition.15 The leasing transaction is based on a contract of lease between the lessor and the lessee. It refers to a movable thing, usually a piece of machinery, useful to the business or profession of the lessee. The lessor is bound to give to the lessee the use of the leased thing during the term of the lease, which may not be shorter than three years, for cause. The lessee has the option either to buy the thing at the end of the term or to renew the lease. The parties may agree that the lessee may purchase the thing before the end of the term. The contract of lease has to be made in writing and be recorded in a special record kept at the district courts of Athens and of the residence of the lessee. Only corporations may be involved as lessors; the finance lease should be the exclusive corporate purpose. For their formation, a further approval must be obtained by decision of the Bank of Greece. D.

USUFRUCTUARY LEASE

The Civil Code provides for the usufructuary lease of agricultural land (αγρομίσθωση, agromisthosi; Arts 619–637), of other income-producing objects (Art. 638), of livestock (κτηνοληψία, ktinolipsia; Arts 639, 640), as well as for the produce-sharing usufructuary lease of agricultural land (επίμορτη αγροληψία, epimorti agrolipsia; Arts 641–647).

13. 14. 15.

See Law 1703/1987 and Law 1953/1991. Law 813/1978, as amended and codified by Presidential Decree 34/1995. See Law 1665/1986.

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By a contract of usufructuary lease, the lessor is bound to give to the lessee during the term of the lease not only the use of the object (i.e., thing or right) leased but also the enjoyment of its fruits, insofar as they are to be considered as products according to the rules of normal husbandry or management (Arts 619, 638 CC). Insofar as a contrary intention does not result from Articles 621–647 CC (e.g., Art. 624 CC), the provisions relating to ordinary lease apply to usufructuary lease by way of analogy (Arts 620, 641 II CC). In the absence of an agreement to the contrary, the lessee is not entitled to transfer to a third party or to sublet the thing leased (Art. 624 CC). The right of pledge of the lessor of agricultural land also extends to the fruits of the land, insofar as they are susceptible to judicial attachment (Art. 626 CC). If by reason of force majeure the income of the land leased has undergone a substantial reduction, the lessee is entitled to demand a proportionate reduction of rent. Any waiving of such right made by the lessee prior to the occurrence of circumstances justifying exercise thereof is null and void (Art. 627 CC). A lease of agricultural land may not be concluded for a term shorter than four years (Art. 634 CC). Upon termination of the lease, the lessee of a farm shall leave behind as much of the products thereof as is necessary for the continuance of the normal husbandry up to the new harvest, without regard to the question whether he received such products on entry upon the lease. Insofar as the lessee did not receive such products, he may demand compensation for their value from the lessor (Art. 636 CC). By a lease of agricultural land, the parties may agree that the rent will consist in a share in the products of the farm. The rent will then be expressed as a percentage of the produce; if it has not been fixed in the contract, it will be established in conformity with local usage (Art. 641 I CC). To the extent that no different conclusion derives from the contract or from local usage, the sharing of the produce will be effected in equal parts between the lessor and the lessee (Art. 643 CC). Before starting with the harvesting operations, the lessee shall notify the lessor accordingly (Art. 644 CC). Charges and taxes relating to the leased land shall be borne by both parties in proportion to each one’s share in the produce (Art. 645 CC). E.

CONTRACT FOR SERVICES

Articles 648–680 CC regulate both the contract for independent services and the contract for dependent employment in detail. The regulation of dependent employment contains, for example, protective provisions on inventions made by the employees (Art. 658), the limited availability of set-off against salary or wages (Arts 664, 665), overtime pay (Art. 659), and paid vacations (Arts 666, 667); special reference is also made to collective agreements (Art. 680). Besides the above provisions, many special statutes on the law of employment have imposed a modern system of labor law (for further details, see Ch. 14). The contract for independent services is a two-sided contract, whereby the employee is bound to furnish, during a fixed or undetermined period of time, his services to the employer and the latter is bound to pay the remuneration agreed upon.

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The object of the contract is the services of the employee as such and not the result of the work; this is the basic difference between a contract for services and a contract for work (Art. 681 CC; see below, under F). If there is no indication of a different intention, the employee shall perform his obligation in person and the claim for services is not transferable (Art. 651 CC). The employee is bound to perform his services diligently. The standard of care and diligence for which the employee is liable is established according to the contract, in consideration to the education or, in view of the services to be performed, the employee’s special knowledge and skills, of which the employer had or ought to have had knowledge (Art. 652 CC). Remuneration is essential for the contract for services. If services are performed without remuneration, the contract is a mandate (Art. 713 CC; see below, under I). The usual remuneration is deemed to have been tacitly agreed upon if, under the circumstances, the performance of services is to be expected only against remuneration (Arts 649, 653 CC). An employment relationship ends upon expiration of its term. If the duration of the employment cannot be inferred from the contract, either party has the right to terminate the relationship by timely notice given to the other party (Arts 669, 670 CC). However, either party may immediately terminate the contract for serious cause. Such right may not be excluded by agreement (Art. 672 CC). On the one hand, if termination is occasioned by the conduct of the party in breach of the contract, such party is bound to pay reparations (Art. 673 CC). If, on the other hand, the employer terminates the contract due to a change that occurred in his personal or financial situation, the court may award reasonable compensation to the employee at its discretion (Art. 674 CC). The contract for employment ends at the death of the employee. Death of the employer, however, ends the contract only if the parties concluded it mainly with regard to his person (Art. 675 CC). A contract for independent services in which the employee has to perform a service entrusted to him because of a special confidence, without being employed on a permanent basis with a fixed remuneration, may be immediately terminated by the employer even if he cannot invoke serious cause. The employee has an equal right to immediate termination, but if he gives untimely notice, he must compensate the employer for any damage arising therefrom (Art. 676 CC). F.

CONTRACT FOR WORK

By a contract for work, the contractor is bound to produce the work promised, and the customer is bound to pay the remuneration agreed upon (μίσθωση έργου, misthosi ergou; Art. 681 CC). If the contractor binds himself to produce the work from material provided by him, the provisions applicable to a sale apply, in case of doubt, to such a contract; if the material is to be provided, in the whole or mainly, by the customer, the provisions applicable to contract for work shall apply exclusively (Art. 683 CC). If the work performed has minor defects, the customer is entitled to demand either their removal within a reasonable time, insofar as such removal does not entail disproportionate expense, or a proportional reduction of the remuneration

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(Art. 688 CC). If the work performed has substantial defects that destroy its fitness for its ordinary or stipulated use, or if it does not meet the qualities agreed upon, the customer is entitled to demand cancellation of the contract instead of removal of the defect or reduction of the remuneration (Art. 689 CC). If the defect in the work is caused by a circumstance for which the contractor is responsible, the customer may demand compensation for non-performance instead of cancellation or reduction (Art. 690 CC). After acceptance of the work by the customer, the contractor is released from any liability by reason of defects in the work, unless such defects could not be detected by way of normal inspection or were intentionally concealed by the contractor (Art. 692 CC). Prescription of claims by the customer arising out of defective performance is set at ten years from acceptance in the case of work on immovables, and at six months in all other cases (Art. 693 CC). Remuneration is payable at the time of acceptance of the work (Art. 694 CC). As security for his claims arising from the contract, the contractor has a lien over the customer’s movables that have been produced or repaired by him, and which he has in his possession (Art. 695 CC). If the contract is based upon an estimate of cost and it is proven that the work is not practicable without significantly exceeding the estimate, the customer may terminate the contract for this reason instead of bearing the additional cost, unless the contractor had expressly guaranteed the accuracy of the estimate, in which case the latter bears the risk of any increase in cost and may not demand an increase in the remuneration. In case of such termination, the contractor has a claim for remuneration proportionate to the work performed (Arts 696, 697 CC). The contractor bears the risk up to the delivery of the work. This means that, in case of accidental destruction of the work, the customer is released from his obligation to pay remuneration. If, however, the customer is in default of acceptance, the risk passes to him, and he is therefore bound to pay remuneration even in case of accidental destruction of the work (Art. 698 CC). It is a different question whether the contractor is required to produce a new work in order to replace the one lost. The answer to this question is found pursuant to the rules relating to impossibility of performance in the broader sense (explained above, Section I E 2). The customer may, at any time up to the completion of the work, give notice of termination, in which case the contractor is entitled to claim the remuneration agreed upon (Art. 700 CC). Persons employed by the contractor for the construction of a building or other work related to immovables shall have, in respect of their wages and salaries, a direct claim against the customer up to the amount the latter owes to the contractor (Art. 702 CC). G.

BROKERAGE CONTRACT

A person who promises a fee for the procurement of a contract or for information on the opportunity of making a contract, is bound to pay the fee only if the contract is concluded in consequence of such procurement or indication (μεσιτεία, mesiteia). If, in consequence of such procurement or indication, an agreement

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containing a promise of contract was concluded but the final contract is frustrated, only one-half of the fee may be demanded. For outlays incurred, the broker has a claim to be reimbursed only if this has been agreed upon, in which case he has a claim for reimbursement even if a contract is not concluded (Art. 703 CC). If the contract is concluded subject to a condition precedent, the fee may not be demanded until the condition is fulfilled. If the contract is concluded subject to a condition subsequent, the fee is payable upon conclusion of the contract (Art. 704 CC). A fee is deemed to have been agreed upon if, under normal circumstances, the procurement or indication is done only for remuneration or if such procurement has been entrusted to a professional broker. If the amount of remuneration is not specified and there is a tariff, the tariff fee, or, in the absence of a tariff, the normal fee, will be due (Art. 705 CC). Claims for fee and reimbursement are barred if the broker, contrary to the terms of the contract, has acted for the other party as well; they are equally barred if the broker, under circumstances which are inconsistent with the requirements of good faith, has accepted a promise of a fee made to him by the other party (Art. 706 CC). If the fee agreed upon is disproportionately high, it shall be reduced to the appropriate level by the court upon application by the debtor (Art. 707 CC). In principle, the right to claim reduction is not barred by the mere fact of payment of the fee. The promise of a fee for an introduction leading to marriage is null and void and whatever has been eventually paid on account of the promise may be reclaimed (Art. 708 CC). H.

REWARD

A person who, by public notice, announces a reward for the performance of an act, in particular for the production of a result, is bound to pay the reward to any person who has performed the act, even if he did not act with a view to the reward (προκήρυξη, prokiryxi). The announcement of a prize to be awarded after a competition is valid only if a period of time on the carrying out of the competition is fixed in the announcement (Art. 709 CC). The reward may be revoked before the performance of the act unless revocability has been waived in the notice of the reward; in case of doubt, a waiver is presumed existing from the fact that a period of time has been fixed for the performance of the act. Revocation may be made only by the promisor, and is effective only if made known in the same or similar manner as the reward, or by special notice. If revocation was not made known in the manner specified above, it is invalid in regard to the person who performed the act without knowledge of the revocation and with a view to the reward (Art. 710 CC). In case of multiple performances, the reward belongs to the person who has first performed the act. If the act has been performed by several persons simultaneously, an equal share of the reward belongs to each (Art. 711 CC). If several persons have contributed to the result, the promisor shall equitably divide the reward among them, with

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regard to the contribution of each claimant in the production of the result (Art. 712 CC). I.

MANDATE

By a contract of mandate (εντολή, entoli), the mandatory (e.g., an agent) undertakes to conduct the affair entrusted to him by the mandator (e.g., the principal) without remuneration (Art. 713 CC). The mandatory is responsible for any fault (Art. 714 CC). In principle, he cannot transfer the execution of the mandate to a third party (Art. 715 CC). If the transfer is permitted, the mandatory is responsible only for fault imputable to him in making such transfer and in giving instructions to the third party. If such transfer is not permitted, he is responsible for the fault of the third party as if it were his own fault (Art. 716 I, II CC). In both cases of transfer, either permitted or not, the mandator may in his own name bring directly against the third party the actions which the mandatory has against the third party (Art. 716 III CC). Other possible effects of a contract of mandate on third parties, if any, are covered by the rules of agency and of power of attorney (Arts 211–215, 216–235 CC; see Ch. 5, Section VII). The mandatory is bound to give the mandator information about the affair entrusted to him, and to render an account after the end of the mandate (Art. 718 CC), handing over to him all that he had received for the performance of the mandate and all that he obtained therefrom (Art. 719 CC). If the mandatory has spent, for his own benefit, money belonging to the mandator, he is bound to pay interest upon it from the time of expenditure (Art. 720 CC). The mandator has the burden of paying in advance the expenses necessary for the performance of the mandate and is bound to reimburse the mandatory for all expenses and to pay compensation for any loss the mandatory has incurred in the performance of his duties (Arts 721–723 CC). The mandator may revoke the mandate at any time. An agreement to the contrary is null unless the mandate involves also the benefit of the mandatory or of a third party (Art. 724 CC). The mandatory may renounce the mandate at any time, but he may do so with impunity only if he gives timely notice for the mandator to get the task performed conveniently otherwise unless a serious cause exists for a premature renunciation (Art. 725 CC). In case there is no indication of intention to the contrary, the mandate is extinguished by the death, or dissolution for legal entities, the bankruptcy or the placing under interdiction of either the mandator or the mandatory (Art. 726 CC). If a person has given advice or made a recommendation to another, he shall not be liable for any loss resulting therefrom unless he had assumed responsibility by contract or acted fraudulently (Art. 729 CC). Negotiorum gestio or management without mandate (διοίκηση αλλοτρίων, dioikisi allotrion) is a relationship in which all the features of mandate are present except the instructions of the principal; nevertheless, the results between the two contractual forms are quite similar (Arts 713–729 CC).

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J.

CIVIL COMPANY

1.

The Civil Company Defined

By contract, two or more persons may from a ‘civil company’ (αστική εταιρία, astiki etairia; also known as ‘civil partnership’) to pursue, by means of common contributions, a common purpose, especially of economic character (Art. 741 CC). ‘Economic’ is meant as aiming at some profit, i.e. commercial. The pursuit of nonprofit activities is normally carried out by ‘associations’ formed under Article 78 of the Civil Code. The provisions governing the civil company apply to such associations if they choose not to incorporate (Art. 107 CC). The civil company need not be commercial. If nevertheless it acts as such, it is treated as a commercial partnership and the participants have to bear the consequences of such commerciality (see below, under 6). 2.

Agreement and Legal Personality

The civil company’s agreement, which provides a framework for the association of the partners, is of personal character and is in principle valid regardless of form. Basically it follows the Roman model of the societas as a mere vinculum iuris personally binding and does not create a distinct legal persona. Nor does it create separate set of assets and liabilities. The partners are usually a small body of persons having trust and confidence in each other. Legal personality may be accorded to a civil company under two conditions: first, that it pursues an economic purpose and, second, that it complies with the publicity requirements applicable to the commercial partnership (Art. 784 CC). In principle the members of such an incorporated company are not liable for its obligations. Our focus will be on the unincorporated civil company which constitutes only an agreement binding the partners to one another (Arts 741–783 CC; reference should also be made to Arts 62.2, 64, 194 III, 286(a), 329, 786, and 920 CCiv.P which deal with the procedural aspects of corporate matters). 3.

Internal Operation: Rights and Obligations of the Partners

The rights and obligations of the partners to one another are regulated by the Civil Code in several specific rules. The guiding principle inspiring the specific rules is equality of treatment of the co-partners. (a)

Contribution

Article 742 of the Civil Code requires each partner to make a contribution to the company. If the governing agreement is silent on the point, the partners shall make equal contributions. If a partner is in default in making his contributions or if there

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is impossibility, any one of the other partners may terminate the company by giving notice to his co-partners (Art. 743 CC). The partner is not bound to provide an increase of his contribution, nor to make up for the capital diminished by losses (Art. 745 CC). (b)

Standard of Care

Towards his co-partners the partner is responsible only for such care as he is accustomed to exercise in his own affairs (Art. 746 CC), but he is not relieved from responsibility for gross negligence (Art. 333 CC). (c)

Administration

The administration of the civil company belongs, in the absence of an agreement to the contrary, to all the partners acting jointly. That is to say, the management of the company affairs must be exercised jointly by all co-partners, in other words, the consent of all partners is necessary for any and every company activity or transaction. When the agreement provides for majority voting, in case of doubt, it is calculated according to the number of the partners (Art. 748 CC). (d)

Administration by Delegated Power

If the administration is entrusted to one or to several of the partners (managers), the others are excluded. The managers shall then act jointly, unless the governing agreement provides that decisions are to be taken by majority (Art. 749 CC). If, according to the agreement, the administration belongs to all or to several of the partners – in the sense that each one of them is entitled to act alone – each one may object to the undertaking of an obligation towards a third party. Such objection has, however, no effect against third parties, unless they acted with knowledge of the objection (Art. 750 CC). The authority conferred by the governing agreement to manage the business may be withdrawn by unanimous resolution of all the other partners, if a serious cause exists (Art. 752 CC). Also the managing partner(s) himself may resign from the management, if a serious cause exists (Art. 753 CC). As far as the rights and duties of the managing partner(s) are concerned, the provisions relating to mandate (Arts 713–729 CC; see above, I) apply by analogy (Art. 754 CC). (e)

Right to Check and Control

The right of a partner to be informed of the activities and the financial condition of the company is usually described as a right of control. Every partner may personally get informed of the company’s affairs, inspect the business books and papers and prepare a summary of the condition of the company’s assets and liabilities (Art. 755 CC).

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Unless the governing agreement provides otherwise, each partner has the right to participate together with his co-partners in representing the company towards third parties. However if a partner is being authorized to administer the business affairs, he is also deemed, in case of doubt, to be empowered to represent the other partners towards third parties (Art. 756 CC). The power of representation conferred to a partner by the agreement may be revoked by unanimous resolution of the other partners only if a serious cause exists and only together with the authority to manage the business, if the latter ought to have been conferred in conjunction with such authority (Art. 757 CC). (g)

Joint Ownership

The contribution of the partners, as well as any asset acquired for the account of the civil company, jointly belong to all the partners in proportion to their share. This is a fractionally shared joint ownership in the sense of Article 785 of the Civil Code. The partner, who in the course of managing the company business, acquires any asset in his own name, is bound to transfer it to the joint ownership of all the partners (Art. 758 CC). Any debts or obligations towards third parties arising from the management or the representation of the civil company shall be borne by each partner in proportion to his share in the civil company (Art. 759 CC, in line with Art. 480 CC; however, with reference to an obligation which has a non-divisible object, see Art. 494 CC). (h)

Partner Substitution

The relationship between the partners being of personal character, no partner can put a third person in his place without the consent of all the other partners, unless the agreement provides for such unilateral substitution. With the exception of claims arising from the administration of the business and of claims to a dividend or to what accrues to a partner in case of liquidation, claims of the partners against one another deriving from the company relationship are not transferable (Art. 760 CC). Partners are bound neither to alienate their share in the joint ownership nor to ask for the distribution of assets belonging to such joint ownership before the liquidation of the company has been completed (Art. 761 CC). (i)

Sharing of Profits and Losses

The essential right of a partner is to participate in the profits of the company. The agreement determines the way of participation in the profits. If the civil company is destined to last more than one year, profits are to be distributed each year; otherwise profits are to be distributed upon dissolution. The rule can be varied by agreement (Art. 762 CC). If the governing agreement does not provide otherwise, profits and losses are shared equally. If, however, the partner’s proportion has been

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fixed with regard to the profits only or with regard to the losses only, this same proportion will in case of doubt apply to both (Art. 763 CC). A clause whereby any one of the partners is excluded from the profits or exonerated from the losses is null. Such nullity may be invoked only by the partner concerned. But the agreement stating that a partner who only contributes his services to the company will not participate in any losses is valid (Art. 764 CC). 4.

Dissolution

The civil company is dissolved at the expiration of the time for which it has been entered into (Art. 765 CC). Notice of dissolution may be given before the expiration of time if a serious cause exists (Art. 766 CC). Legal writers are of the opinion that if the cause alleged is groundless the company is not dissolved. Court decisions rule, however, that the notice of dissolution dissolves the company anyway and that the eventual inexistence of the alleged serious cause could be material only with reference to the other partners’ right to claim compensation for the premature termination of the company. Where the duration of the civil company is not fixed by the governing agreement, or if the civil company is entered into for the lifetime of one of the partners, or if the civil company is tacitly continued after the expiration of the fixed time, it may be dissolved by notice at the pleasure of any partner (Arts 767 I, 768, 769 CC). If a partner gives untimely notice without having a serious cause, he shall compensate the other partners for any damage arising from the dissolution of the civil company (Art. 767 II CC). If the serious cause invoked by the partner giving the notice of dissolution is the breach of the governing agreement by one of the other partners, the latter shall be liable for the damage caused by such untimely dissolution to the other partners (Art. 770 CC). But the court may, instead, at the request of the remaining partners, exclude such other partner; and the company shall thereafter be continued between the remaining partners (Art. 771 CC). Dissolution of the civil company takes place also if the company’s purpose has been attained or its attainment has become impossible (Art. 772 CC). Additionally, a civil company is dissolved by the death, or upon the bankruptcy of one of the partners, or in the case of a partner being placed under judicial assistance (see Ch. 5, Section V B). This rule is in conformity with the principle of the personal character of the civil company but it is not mandatory. The governing agreement may, therefore, validly provide that the company shall be continued either between the remaining partners or between the latter and the heir or the heirs of a deceased partner (Arts 773, 775 CC). 5.

Winding-up and Liquidation

Dissolution is followed by winding-up and liquidation. The civil company survives after its dissolution in the sense that it is deemed to be continuing as far as it is necessary for carrying out the object of liquidation (Art. 777 CC). In the

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absence of a contrary agreement, the liquidation is the concern of all the partners acting jointly, or it shall be carried out by a liquidator appointed by the unanimous decision of all the partners (Art. 778 CC). Such liquidator or liquidators have all the powers necessary to carry out the process of liquidating the assets and settling the accounts of the company for the purpose of making distribution of net assets – if any – to the partners and dissolving the concern. Thus, upon dissolution and following the payment of debts, the contributions are returned and the balance is distributed to the partners in proportion to their shares in the civil company (Arts 780–782 CC). Partners may take back specific items which had been given as contributions in kind for use (Art. 779 CC). They have no right to be indemnified for the accidental damage or loss of such items. Any deficit of the assets with respect of settling liabilities is borne by the partners in the proportions in which they have undertaken to bear the losses. If a partner is unable to pay his share, the other partners are liable to cover the deficit caused by such inability (Art. 783 CC). 6.

The Question of Bankruptcy

In principle, being not an association for profit, the civil company incorporated under Article 784 CC cannot be declared bankrupt. If its assets are insufficient, the creditors may go against the partners themselves (Art. 759 CC) and may place into bankruptcy those of them who are merchants and cannot meet their debts. The company shall thereupon be dissolved unless it had been agreed that the company is to be continued between the remaining partners (Art. 775 CC). But if it appears to have been commercial according to the substantive criterion of having actually been involved in commercial activities, going beyond its scope, the company shall have to endure the legal consequences including the possibility of being declared bankrupt in case of insolvency. In view of the fact that the civil company incorporated under Article 784 CC is of limited liability (see above, under 2), there may, under certain circumstances, arise the question of piercing the corporate veil, with a view towards engaging the personal liability of the partners for its outstanding liabilities. K.

COMMUNITY

Unless otherwise provided by law, the effect of a right belonging jointly to several persons is that a fractionally shared community exists between them (κοινωνία κατ’ ιδανικά μέρη, koinonia kat’ idanika meri). In case of doubt, it is deemed that the shares are equal (Art. 785 CC). In principle, any right may be the object of such community. Since, however, with respect to personal rights belonging to several persons, the provisions relating to joint and several obligations normally apply (Arts 480–495 CC; see above Section I L), the provisions relating to fractionally shared community will apply with respect to absolute or real rights. Thus:

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A fractional part of the fruits accrues to each participant in proportion to his share (Art. 786 CC). Each participant is authorized to use the common object insofar as the joint use by the other participants is not thereby interfered with (Art. 787 CC). Management of the common object belongs to the participants jointly, whereby they are liable to one another for any fault (Art. 788 I CC). By majority vote, regulations on normal management and exploitation of the common object may be adopted. The majority vote shall be reckoned according to the volume of shares (Art. 789 CC). If the management and use are not regulated by agreement or by majority decision, each participant may demand that the court decide on the most appropriate regulation having regard to the interests of all participants. If necessary, the court may appoint a manager (Art. 790 CC). An essential alteration of the object or a disproportionately expensive addition thereto cannot be decided or demanded. The right of the individual participant to a part of the emoluments proportionate to his share may not be reduced without his consent (Art. 792 CC). Each participant is bound as against the other participants to bear the costs of maintenance, management and common use of the common object in proportion to his share (Art. 794 CC). The community relationship not being of contractual origin, and contrary to what applies with relation to a civil company or a partnership (see above, under J), each participant may dispose of his share; however, the participants may dispose of the common object as a whole only jointly (Art. 793 CC). Additionally, each participant may demand dissolution of the community at any time, insofar as such right is not excluded by agreement or through the assignment of the common object to a permanent purpose. Dissolution of the community may not be excluded by agreement for more than ten years (Art. 795 CC). Dissolution may nevertheless be demanded even before the agreed time if a serious cause exists (Art. 797 CC). The claim for dissolution is not subject to prescription (Art. 805 CC). Dissolution of the community is effected through division (Art. 798 CC). If all participants do not agree thereon, each one may demand a division by the court under Articles 478–494 CCiv.P (Art. 799 CC). The division is effected in kind, if the common object or objects can be divided without diminution of value into similar parts proportionate to the shares of the participants (Art. 800 CC). If division in kind is not possible, the court orders the sale of the common object by public auction, followed by the division of the proceeds (Art. 801 CC). Rights of third parties to the common object shall not be prejudiced by division (Art. 803 CC). L.

LOAN

By a contract of loan, the lender transfers to the borrower the ownership of money or other fungibles and the latter is bound to repay what he receives in things of the same quantity and quality (δάνειο, daneio; Art. 806 CC). If the time of repayment of the loan is neither fixed nor can be deduced from the circumstances, the loan shall be repaid upon one month’s notice. If interest

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is not stipulated, the debtor is entitled to make repayment even without notice (Art. 807 CC; in relation to Art. 324 CC, see above, Section I B 6). In case of a money loan, if the debtor is in default in repayment, he is liable only for legal or contractual (moratory) interest. Any agreement to the contrary, e.g. providing for a claim for further positive damage, is null (Art. 808 CC; in relation to Art. 345 CC, see above, Section I B 2(c)(ii) in f.). A person who has promised to make a loan may refuse to make it, if the other party subsequently becomes insolvent. If the insolvency existed at the time of making the promise, the promisor may refuse to make the loan only if he, without his fault, had no knowledge thereof (Art. 809 CC). M.

CONTRACT OF DEPOSIT

By a contract of deposit, the depositary takes delivery of a movable from the depositor with a view to keeping it in his custody, subject to the undertaking of restitution upon demand (παρακαταθήκη, parakatathiki). Remuneration for custody may only be claimed if it has been agreed upon, or if under the circumstances the undertaking of custody is to be expected only upon remuneration (Art. 822 CC). If the custody is undertaken gratuitously, the depositary shall be responsible only for such care as he is accustomed to exercise in his own affairs. But if the custody is undertaken for remuneration, the depositary shall be liable for any fault (Art. 823 CC). The depositary is not entitled to make use of the thing deposited without the permission of the depositor. Nor is he, in principle, entitled to deposit the deposited thing with a third party (Art. 824 CC). If such deposit with third parties takes place, the depositor may bring directly against the third party the action which the depositary has against such party (Art. 825 CC). The depositor is bound to reimburse the depositary for the outlays he incurs and to compensate him for damage he suffers in connection with the custody (Art. 826 CC). The depositor may at any time demand the return of the thing deposited, even if a time is fixed for custody (Art. 827 CC). The depositary may not return the deposited thing before the time fixed for custody has elapsed, unless unforeseen circumstances make it impossible for him to further keep the thing safely and without prejudice to himself. If a time for custody is not fixed, the depositary may return the thing at any time (Art. 828 CC). Place of return is the place where the thing was to be kept. The depositary is not bound to bring the thing to the depositor (Art. 829 CC). Irregular deposit (ανώμαλη παρακαταθήκη, anomali parakatathiki): in case of doubt, a deposit of money or other fungibles is deemed to be a loan, if the depositary is entitled to make use thereof. However, the time and place of return is determined, in case of doubt, according to the provisions relating to the contract of deposit. In the case of deposit of securities, the depositary shall not have the right to dispose of them unless such right has been awarded to him expressly and in writing (Art. 830 CC).

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Custodianship (μεσεγγύηση, mesengyisi): if two or more persons have delivered a thing movable or immovable to a third party (the custodian) in order to secure their disputed or uncertain rights thereon, the custodian shall only be bound to restitute upon consent of all the interested parties or upon the issue of a court judgment (Art. 831 CC). In principle, the custodian is subject to the provisions relating to the depositary (Art. 832 CC). If required by the nature of the thing, the custodian shall be under an obligation to effect acts of management, in which case the provisions related to mandate (see above, under I) shall apply. In case of necessity, the custodian shall be entitled even to alienate the thing in the manner that, under the circumstances, will be the most advantageous to the interested parties (Art. 833 CC). N.

LIABILITY OF INNKEEPERS (ευθύνη ξενοδόχων, euthyni xenodochon)

An innkeeper is liable for any damage, destruction or loss of things brought into the premises by accommodated paying guests, unless such damage is caused either by the guest himself or by a visitor, a companion or a servant of the guest, or by the particular nature of the thing, or by force majeure. Boarding houses, clinics, sleeping wagons and passenger vessels and airplanes are, for the purposes of liability, deemed to be hotels as regards the accommodation they offer to their clients or passengers (Art. 834 CC). As regards money, securities, and valuables, liability of the innkeeper under Article 834 CC is limited to a maximum amount per guest unless the innkeeper, having knowledge of their quality, has taken such things into custody, or has refused to take them into custody, or unless the relevant damage is imputable to him or to members of his family or his personnel (Art. 835 CC). Any unilateral declaration of the innkeeper waiving or limiting his liability is null and void (Art. 837 CC). The innkeeper has a right of pledge over the things brought into the premises by the guest, as security for his claims for accommodation and related services afforded to the guest (Art. 838 CC). The provisions relating to the liability of innkeepers apply by analogy with regard to persons who run stables, warehouses, garages, and airports, with reference to the animals, coaches, cars, automobiles, airplanes and their accessories which are being brought into the premises (Art. 839 CC). O.

LIFE ANNUITY

The obligation to provide annuity (in money or other fungibles), assumed mainly by contract or by will, may be created for the lifetime of the creditor or the debtor or a third party. In case of doubt, annuity is deemed to have been created for the lifetime of the creditor (ισόβια πρόσοδος, isovia prosodos). The amount specified for the annuity is, in case of doubt, the yearly amount of the annuity (Art. 840 CC).

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The yearly amounts of the annuity form part of a whole performance which is due in installments and which corresponds to the single, whole right of the creditor of the annuity. Annuity is payable in advance: a money annuity, in monthly installments; any other kind of annuity, in periods of time determined according to the purpose of the annuity (Art. 841 CC). A contract, whereby an annuity is promised, shall be null and void unless it is notarially authenticated (Art. 842 CC). In principle, the beneficiary of a life annuity may assign his rights arising thereunder. However, the person who gratuitously creates an annuity for the benefit of a third party may, by the same juridical act, prescribe that such annuity shall not be subject to attachment (Art. 843 CC). P.

GAMING AND BETTING

In principle, gaming (παίγνιο, paignio) and betting (στοίχημα, stoichima) are not prohibited by law. However, they create no binding obligation and, therefore, no (legally enforceable) claim arises therefrom. Equally no claim arises either from a promise or from an acknowledgment of debt in respect of a gaming debt or a bet, or from a bill of exchange or from a promissory note issued in respect of such a debt (Art. 844 CC). Nevertheless, what has been paid for the purpose of satisfying such debts may not be reclaimed, provided that such payment had been made voluntarily on the part of the debtor, without fraud or artifice on the part of the winner (Art. 845 CC). Several special statutes regulate other aspects of gaming, betting, and lotteries. Unlike gaming and betting, lotteries are in principle prohibited. Therefore, all lotteries are unlawful, except where a lottery has been approved by law. Only in such a case may a lottery contract give rise to a claim (Art. 846 CC). Q.

GUARANTY

By a contract of guaranty, the guarantor assumes in regard to the creditor of a third party to be responsible for the fulfillment of the third party’s obligation (εγγύηση, engyisi; Art. 847 CC). Guaranty may also be given for a future or conditional obligation (Art. 848 CC) and, in any case, shall be null if it has not been produced in writing. This nullity is cured by performance (Art. 849 CC). The guarantor’s obligation being collateral, (a) a valid principal obligation is required; however, a guaranty given in respect of a debt contracted by a person lacking legal capacity shall be valid if the guarantor had knowledge thereof (Art. 850 CC); (b) the guarantor is responsible at any time for the full extent of the principal obligation at that time, in particular for the legal consequences of any default by the principal debtor (Art. 851 CC); (c) the guarantor may raise against the creditor all defenses available to the principal debtor, even if the latter has

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waived any one of them after the guaranty had been concluded (Art. 853 CC); and (d) the principal debt having been barred by prescription, the guarantor is released (Art. 864 CC). The guarantor’s promise to answer for another’s debt being subsidiary to the principal obligation, he may refuse to satisfy the creditor until after the latter attempted enforcement by execution against the principal debtor without success (Arts 855, 856 CC). Such defense is barred: (a) if the guarantor has waived it, in particular if he has assumed the guaranty in such a manner that he is himself a principal debtor; and (b) in cases where bringing an action against the principal debtor makes no practical sense (Art. 857 CC). To the extent that a guarantor has satisfied the creditor and has a cause of action against the latter on the basis of the underlying relationship with the principal debtor, he is subrogated to the rights of the creditor (Art. 858 CC), unless he omitted to raise justified defenses that belonged to the principal debtor and of which the guarantor had or ought to have had knowledge (Art. 859 CC). If there are several guarantors for the same obligation, they are liable to the creditor jointly and severally, even where they have not assumed the guaranty jointly (Art. 854 CC). Co-guarantors are liable to each other and to the co-guarantor who satisfied the creditor only under Art. 487 CC (Art. 860 CC; see above, Section I L). The guarantor shall be released from his obligation where (a) for reasons imputable to the creditor, satisfaction of the creditor by the principal debtor has become impossible (Art. 862 CC), or (b) the creditor has, to the detriment of the guarantor, waived securities concerning exclusively the particular claim for which the guaranty had been issued (Art. 863 CC). It is incumbent upon the creditor to proceed without delay to the collection of the claim; otherwise, the guarantor is released from his obligation (Arts 866–868 CC). A mandate providing that the mandatory shall give credit to a third party in his own name and for his own account is valid as a guaranty of the third party’s obligation arising from the giving of the credit, if given in writing (Art. 870 CC). R.

COMPROMISE

By the contract of compromise, the parties settle, by way of mutual concessions, a dispute or the uncertainty that existed between them concerning a legal relationship (συμβιβασμός, symvivasmos). It is tantamount to uncertainty concerning a legal relationship if the realization of a claim is uncertain or doubtful (Art. 871 CC). A compromise may be arranged either judicially, under the procedure provided for in Article 293 CCiv.P, in which case the pending lawsuit is abolished, or out of court. Compromise is subject to rescission if the state of affairs which, according to the terms of the arrangement, had constituted the basis of the compromise does not correspond to the actual facts, and if the dispute or uncertainty would not have arisen if the actual facts had been known to the parties (Art. 872 CC).

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S.

ABSTRACT PROMISE OR ACKNOWLEDGMENT OF DEBT

1.

Concept and Validity

The Civil Code leaves it to be inferred from Articles 873–875 that promissory transactions are in principle causal (αιτιώδεις, aitiodeis); that is to say, any promise, however seriously intended, is not binding unless supported by a legitimate cause (see Ch. 5, Section V F). Article 873 CC is the exception to this principle. It provides that a contract, whereby an act of performance is promised or a debt is acknowledged in such manner that an obligation is to be created irrespective of the cause of the debt, shall be valid if the promise or the declaration of acknowledgment is made in writing (αφηρημένη υπόσχεση ή αναγνώριση χρέους, afirimeni yposchesi i anagnorisi chreous). In case of doubt, a written statement of the promise making no mention of the cause of the debt will be deemed to have been made for the purpose of creating an obligation. Such unilateral or one-sided contracts are said to be abstract (αφηρημένες, afirimenes). They create a valid obligation in the sense that the promisee may bring an action against the promisor based upon the agreement without any reference to the cause, i.e. to the cause that explains the debt and justifies it in the eyes of the law. 2.

Effect on the Burden of Proof

A promise or recognition of existence of a debt, if made under an abstract contract, constitutes an act of performance resulting in the enrichment of the promisee to the detriment of the promisor. Would it not be unjust for the promisee to keep the enrichment if there was no legal cause or if the cause has failed? The provisions relating to unjust enrichment stipulate that the enrichment must be returned (Arts 904–913 CC; see below, Section III). But it is then the promisor who has the legal burden of alleging and proving that there was no legal cause (causa) or that it failed. An abstract contract is thus a sort of legal technique resulting in casting the burden of allegation and proof upon the defendant. This is an exception to the general principle that, in an action based on contract, the legal burden of allegation and proof of the cause rests on the plaintiff. 3.

Formal Requirements

A condition of validity of the said contracts is that the promise or the recognition of debt must be in writing (Art. 873 CC). This form is not necessary if the promise or acknowledgment refers to the balance of a stated current account (Art. 874 CC). If, however, the promise or acknowledgment refers to a cause for which the law prescribes a particular form (e.g., donation, Art. 498 CC), the contract shall not be valid unless such form is observed (Art. 875 CC).

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ORDER TO PAY OR DELIVER

Articles 876–887 CC prescribe the effect of an order to pay or deliver (έκταξη, ektaxi). Such order is made in writing, addressed by one person (the drawer) to another (the drawee), signed by the person giving it, requiring the person to whom it is addressed to pay or deliver to a specified person (the beneficiary or payee) a sum certain in money or in other things described by class. If such order is handed over to the beneficiary by the drawer, it is deemed to contain two authorizations: one authorizing the payee to collect in his own name from the drawee, and another authorizing the drawee to pay or deliver to the payee the sum named in the order, in his own name but for the account of the drawer (Art. 876 CC). Both authorizations are abstract, i.e. independent and distinct from any other contract or duty relationship by virtue of which the order to pay or deliver was issued. The feature characterizing the transaction is that the order to pay or deliver is handed over by the drawer to the beneficiary, it being left to the latter to present the order to the drawee for payment or acceptance. This handing over is essential for the legal effects of the order to arise. The writing must specify the person of the payee and may stipulate the place and time of payment or delivery. The order may be conditional, i.e. it may make the payment or delivery dependent on the occurrence of an event external to the document itself, e.g. of a counter-performance. Being the physical embodiment of any right deriving from the order and its possession being a precondition of exercising such right, the document containing the order corresponds to a ‘documentary intangible’ and, when the order refers to the payment of money, to an ‘instrument’ of English law. Thus, according to Greek law, the concept of an order to pay is broad enough to comprise or also cover bills of exchange and checks, which, however, are regulated by special statutes.16 Orders to pay as such do not create any obligation between the payee and the drawee. If the order is to pay on demand, the drawee either pays or refuses to pay. If the order is to pay at a future date, the drawee is asked to accept the order, i.e., to add his signature on the order (Art. 877 II CC) by way of an undertaking to pay the order at maturity. The drawee is not bound as against the drawer to make payment or delivery to the payee or to accept the order merely because the drawee is a debtor of the drawer (Art. 880 CC). In case the drawee refuses acceptance, payment, or delivery, the payee’s remedy is not against the drawee but against the drawer alone, according to the relationship that binds the latter with the payee; the payee shall give notice to the drawer on the refusal without delay (Art. 882 CC). But if the drawee accepts the order, he becomes the acceptor and, as such, he is bound to make payment or delivery to the payee (Art. 877 I 1 CC). The acceptor’s obligation to the payee is abstract; i.e., the acceptor may not raise against the payee any defenses resulting either from his relationship with the drawer or from the latter’s relationship with the payee (Art. 877 I 2 CC). If the order has been made 16. Laws 5325/1932 and 5960/1933 respectively. See also Ch. 11, Section III A, B.

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with a view of fulfilling an obligation of the drawee towards the drawer, or/and of the drawer towards the payee, such fulfillment shall, subject to an agreement to the contrary, take place only upon payment or delivery effected by the drawee to the payee (Art. 881 CC). This rule is in conformity with the rule provided in Article 421 CC (see above, Section I I 1). Additionally, the rule in Article 881 CC highlights the practical function of the order to pay or deliver: by means of one payment or delivery made by the drawee to the payee, in compliance with the order, what is practically achieved is either that: (a) those other two existing obligations (i.e., of the drawer towards the payee and of the drawee towards the drawer) are, through a combination of a performance by third party (Art. 317 CC) and a performance to third party (Art. 417 CC), simultaneously extinguished; or (b) if there exists no obligation of the drawee towards the drawer, payment by the drawee in compliance with the order gives rise to a claim of the latter against the drawer. The drawee is bound to make payment or delivery only upon presentment (and handing over) of the order (Art. 878 CC). The claim of the payee against the drawee arising from the acceptance is barred by prescription in three years (Art. 879 CC). A drawer may revoke his order as against the drawee, so long as the drawee has not accepted the order in favor of the payee, or has not made payment or delivery. If the drawer has been declared bankrupt, the order that had not yet been accepted shall be deemed as revoked (Art. 883 CC). An order to pay or deliver is not extinguished by the death or incapacitation of either the drawer, the drawee or the payee (Art. 884 CC). The payee may transfer the order to a third party by way of contract. The drawer may exclude such transfer. However, exclusion is effective against the drawee only if it appears from the order itself, or if it has been communicated by the drawer to the drawee before the latter accepts the order or makes payment or delivery (Art. 885 CC). The declaration of transfer is required to be in writing and may be written on the document containing the order. The handing over of the order to the third party is always necessary for such transfer (Art. 886 CC). If the drawee accepts the order in favor of the transferee, he may not assert any defenses arising from the legal relationship existing between himself and the payee. On all other issues, the provisions applicable to the assignment of a claim (Arts 455–470 CC) apply to the transfer of the order by analogy (Art. 887 CC). U.

BEARER BONDS

A bearer bond is a document signed by the issuer and containing a promise to perform an act in favor of the bearer of the document (ανώνυμα χρεόγραφα, anonima chreografa). The person who signed a bearer bond is bound to effect the promised performance to the bearer unless the latter is not entitled to dispose of the bond (Art. 888 CC). The burden of allegation and proof of such non-entitlement lies with the obligor.

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Since, however, it is generally presumed that the possessor of a movable is the owner of the thing (Art. 1110 CC), it follows that the obligor is released by performing in favor of the bearer, even though the latter is not entitled to dispose of the bond, unless the obligor acts contrary to the requirements of good faith and business usage (Art. 889 CC). The issuer is bound by a bearer bond even if it has been stolen from him, or lost by him, or has otherwise passed into circulation without his consent (Art. 890 CC). The obligor is bound to perform only upon the delivery of the bond. Upon delivery, he acquires the ownership of the bond ipso iure, even if the bearer is not entitled to dispose of it (Art. 893 CC). Therefore, if the obligor knowingly performed in favor of a non-entitled bearer, he is not released from his obligation as regards the true obligee (Art. 889 CC); he retains, however, ownership of the bond which has been handed over to him by the bearer (Art. 893 CC). The obligor may raise against the bearer of the bond only those defenses that affect the validity of the document, or appear from the document itself, or which the obligor has directly against the bearer (Art. 892 CC). If a bearer bond is no longer fit for circulation because of damage or defacement, the bearer may require the issuer to issue a new bearer bond on delivery of the damaged one. The bearer shall bear the costs (Art. 894 CC). In the case of a stolen, mislaid or destroyed bearer bond, the former bearer may demand that the court declare such bearer bond void by means of the procedure provided in Articles 843–860 CCiv.P (see Ch. 16, Section XI B), or that the court prohibit the obligor from performing to the bearer. Interest coupons, dividend coupons and non-interest-bearing obligations payable at sight are excepted (Art. 895 CC). The successful former bearer may, upon advancing the cost, require the issuer to issue a new bearer bond (Art. 896 CC). If interest coupons (τοκομερίδια, tokomeridia) have been issued pertaining to a bearer bond, each such coupon constitutes an independent instrument distinct from the bearer bond, unless it contains a contrary provision. Therefore, interest coupons remain in force even if the principal obligation is extinguished or the obligation to pay interest is revoked or modified. On discharge of the principal obligation, the issuer is entitled to retain, until expiration of the period of prescription, the amount corresponding to the face value of those, not yet matured, interest coupons that are not returned (Art. 897 CC; see also Art. 325 CC). The Civil Code provides for the case of theft, loss or destruction of an interest or a dividend coupon (Art. 898 CC) and for the issue of new interest or dividend coupons pertaining to a bearer bond (Art. 899 CC). Conversion of a bearer bond to a bond payable to the name of a specified person may be effected only by the issuer. The issuer is not bound to effect conversion (Art. 900 CC). While an order to pay or deliver is a method of discharging a (usually shortterm) payment obligation, a bearer bond is a vehicle for raising long-term funds and, as such, is a form of investment security. It is either issued to the public at large or to select investors. It contains an undertaking by the issuer to pay a stated amount at maturity, usually with interest at a fixed or floating rate. A bearer bond

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is easy to transfer (it is transferable by agreement and delivery), and its legal structure, as described above, has been devised to enhance its marketability. In view of its importance to the national economy, the issue of bearer bonds is regulated. In principle, the issue of bearer bonds is forbidden.17 It is allowed to issue only such kinds of bearer bonds as the law specifically permits.18 Accordingly, Article 891 CC provides that bearer bonds issued in Greece for a certain sum of money may be put in circulation only in cases where the law specifically so permits.19 A bearer bond that passes into circulation in breach of Article 891 CC is null and void. The issuer is liable to compensate the bearer for any ensuing damage. V.

PRODUCTION OF THINGS AND DOCUMENTS

Under Greek law, without prejudice to the provisions of special enactments (e.g., Arts 450–453 CCiv.P relating to the duty of production of documents in a pending suit, Arts 14–17 LC, etc.), there can be no discovery of a document or other thing in the custody of the opponent or of a third party unless it can be shown that the person from whom discovery is sought is under a substantive-law duty to produce such document or other thing. Whether such substantive-law duty exists is usually determined by Articles 901–902 CC (επίδειξη πράγματος, epideixi pragmatos). A person who has a claim against the possessor of a thing in respect of the thing may require the possessor to produce the thing for his inspection, if such inspection is necessary for the exercise of the claim (Art. 901 CC). A person who has a legal interest in taking cognizance of a document in the possession of another is entitled to demand the exhibition of the document or the delivery of a copy, if the document is made in his interest, or if a legal relationship involving the claimant is recorded therein, or if the document is related to negotiations carried out with a view to concluding such a relationship either by the claimant or by another person acting in the claimant’s interest (Art. 902 CC). In the absence of a different agreement, production or exhibition shall be made at the place where the thing or the document to be exhibited is situated. The risk and costs shall be borne by the person asking for the production. The possessor may refuse production until the other party advances the costs and gives security against the risk (Art. 903 CC).

17. Pursuant to Article 68 of the Law Decree of July 17,/August 13, 1923. 18. See for example Article 68 I, IV, ibid. 19. Legal writers agree that the categories of bearer bonds permitted under Article 68 (ibid.) are also valid for the purposes of Article 891 CC.

Law of Obligations III.

UNJUST ENRICHMENT

A.

SCOPE OF APPLICATION

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The Civil Code devotes a special chapter to rights arising from unjust enrichment (αδικαιολόγητος πλουτισμός, adikaiologitos ploutismos), and starts out with a comprehensive general clause. Article 904 CC states that a person who is enriched from the property of, or at the expense of, another without legal ground is bound to return the benefit. This obligation arises in particular if a person received payment for a debt, which was not owed, or if a transfer or a performance was made on a ground that did not come about or subsequently ceased to exist or was illegal or immoral. The rule of Article 904 CC also applies where absolute rights other than ownership have been infringed, e.g., infringement – even innocent – of a copyright vested in another. B.

DEFENSES

A person may not reclaim a benefit he has conferred if he knew that he was not bound to confer it. The burden of proof lies with the defendant (Art. 905 CC). A claim of restitution is also excluded if the transfer took place in order to satisfy a moral obligation or for the sake of common decency (Art. 906 CC). A benefit conferred on an immoral ground may not be reclaimed if the immoral ground also attaches to the transferor (Art. 907 CC). C.

DIRECTNESS OF TRANSFER

Greek courts and the majority of legal writers require ‘directness of transfer’, in the sense that the loss suffered by the plaintiff and the benefit of the defendant must result from the one same transaction. This rule derives from the belief that the transferor should only be able to sue the transferee with whom he had a contract and should not acquire an additional debtor just because the object transferred happens to have ended up among the assets of a third party. If, however, the recipient transfers gratuitously the benefit acquired to a third party, the transferor is entitled to claim restitution of the benefit so conferred to it from such third party (Art. 913 CC). D.

EXTENT OF LIABILITY IN RESTITUTION

The recipient is bound to restitute the thing received, or whatever he eventually received in exchange for such thing. He is also bound to restitute the fruits

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collected, as well as everything he derived from the thing (Art. 908 CC). The obligation to make restitution is released to the extent that the recipient has ceased to be enriched at the time of the suit for restitution of the enrichment (Art. 909 CC). As from that moment, the recipient’s liability is fixed (Art. 910 CC). IV.

UNLAWFUL ACTS (TORTS, DELICTS)

A.

THE AREA OF TORT LAW

The Greek equivalent to the concept of tort or delict is the ‘unlawful act’ (αδικοπραξία, adikopraxia). With a view of mastering, in an accident age, problems of indemnification of the victim and of loss distribution, the Civil Code is supplemented by several auxiliary statutes enacted to deal with particular allocations of risk and liability.20 They follow, as a rule, the principle of strict liability that is generally limited in amount, and they are not integrated in the Code. B.

THE ELEMENTS OF TORT LIABILITY

The Civil Code deals with delictual liability in two general clauses, supplemented by a number of special provisions. According to the general clauses, whoever ‘unlawfully and culpably’ (Art. 914), or ‘intentionally and in a manner violating the commands of morality’ (Art. 919) causes damage to another is bound to make reparation to the other for any damage thus caused. Technically, the Code presupposes an unlawful or contravening bonos mores act or omission willfully or negligently committed by a person, which has caused damage to another. However, courts practically accommodate all possible cases of culpable causing of injury to another under Articles 914 or 919 CC. The injured party must establish the elements of liability: damage (ζημία, zimia), unlawfulness (παρανομία, paranomia) of the act or omission, culpability (υπαιτιότητα, ypaitiotita) of the author of the damage, and an adequate, that is to say proximate, connection (αιτιώδης συνάφεια, aitiodis synafeia) between fault and damage. The burden of proving the above rests on the injured party.

20. E.g., motor vehicle accidents (Law 3950/1911); accidental injury at work (Law 551/1915); accidental injury of persons and accidental loss or damage of goods in carriage by air (Law 596/1937 ratifying the Warsaw Convention of October 12, 1929 for the unification of certain rules relating to international carriage by air, GG A 209; Law Decree 4395/1964 ratifying the Hague Protocol of the Warsaw Convention, GG A 198); oil pollution damage (Law 314/1976, GG A 106, as amended, ratifying the Brussels Convention, as amended; see Ch. 13, Section II B 1).

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DEFAMATORY RUMORS

Financial injury caused to a person as a result of untrue defamatory rumors communicated by another renders the latter liable to compensate the former, if their untrue content was known or was culpably unknown to the party who communicated them (Art. 920 CC). D.

UNLAWFULNESS

The law draws a distinction between unlawfulness and culpability. According to most writers, the requirement of unlawfulness is satisfied with reference to acts or omissions that are forbidden by law. Thus, according to this view, Article 914 CC does not itself stipulate which behavior is unlawful; it only imposes sanctions on such behavior, to the extent that it has been harmful to a third party. E.

CULPABILITY

Culpability expresses the concept of fault. Fault is the attitude of a person who willfully or negligently committed an unlawful act or omission. It presupposes imputability (καταλογισμός, katalogismos). Imputability is excluded or diminished in cases where the author of the damage is unconscious or is suffering from mental disturbance or is a minor or is deaf-mute (Arts 915–917 CC). Such persons may, nevertheless, be ordered by the court to make reparations for the damage as is reasonable under the circumstances if, according to the relative position of the parties, equity requires compensation and the damage caused cannot be covered from another source (Art. 918 CC). F.

STRICT LIABILITY

The principle of fault is generally the criterion of delictual liability. As an exception, the Civil Code introduces strict liability in two cases: (a) non-domestic animals (Art. 924); and (b) liability for employees (Art. 922). A person who appoints another to perform a function is bound to make reparations to a third party for the harm caused by an unlawful and culpable act or omission committed by the other in the execution of his task. By means of reversing the burden of proof, liability for fault is in certain cases made to approximate to strict liability. This is true for harm inflicted by a person under supervision or by a domestic animal or for damage caused by the fall of buildings and structures. The supervisor or, respectively, the keeper or the owner, is then presumed to be responsible. The duty to make reparations does not arise only if the conditions on exculpatory proof, as provided under Articles 923, 924 II and 925 CC respectively, are satisfied.

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If several persons unlawfully and culpably caused harm, or if several persons are responsible for certain harm, they are all liable jointly and severally (Art. 926 CC). As between themselves, the co-authors of the harm are liable to one another according to the degree of their respective fault, which is determined by the court (Art. 927 CC). H.

PERSONAL INJURY AND DEATH

In cases of personal injury and death, claims for compensation also arise in favor of persons other than the victim. Those persons may bring action independently. Thus, in case of death, the person bound to make reparations shall pay the medical expenses and the funeral expenses to the person on whom the obligation of bearing such expenses lies. He is also bound to make reparations, for the loss of maintenance or services, to the person who is entitled by law to claim maintenance or the performance of services by the victim (Art. 928 CC). In case of injury to a person’s body or health, in addition to medical expenses and the damage already accrued, the obligation shall extend to the detriment that the act occasions to future earnings, and to the additional expenses the person will have to bear because of an increase in his needs. There also arises an obligation to compensate the third party who, being entitled by law to claim performance of services by the victim, is now deprived of the services because of the delict committed against the victim (Art. 929 CC). Compensation for future damages under Articles 928–929 CC shall be made by payment of annuity in monthly installments. Instead of annuity the court, on request by the claimant, may award a lump sum if serious cause exists. The claim for compensation is not barred by the fact that another person is liable to pay compensation or to furnish maintenance to the injured party (Art. 930 CC). I.

CONSEQUENCES OF TORT LIABILITY: REMEDIES

Once an unlawful infringement of a right or legal interest has been established, the plaintiff is entitled to have it undone and demand that it not be repeated. Many legal writers share the opinion that the law allows for the granting of such a general claim. However, the main remedy in tort liability is that the plaintiff is entitled to claim reparations. Such reparations may cover not only damages for pecuniary injury (Arts 914, 919 CC) but also reparation in money for moral or non-pecuniary harm (ικανοποίηση ηθικής βλάβης, ikanopoiisi ithikis vlavis; Arts 932, 299 CC), which the plaintiff has suffered as a consequence of the unlawful act. Moral reparations may include money for pain and suffering. In addition: (a) Indemnity for moral harm is compensation; it does not take the character of a civil penalty.

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(b) In case of fatal injury, the court may award money for pain to the victim’s family. (c) The court has authority to evaluate the indemnity to be accorded. (d) The claim for moral reparations is not transferable and does not pass to the heirs, unless it has been acknowledged by contract or an action has been commenced thereon (Art. 933 CC). The claim for reparations for any damage arising from a delict is prescribed five years from the time the injured party has had knowledge of the injury and of the identity of the person bound to make reparations, and without regard to such knowledge, in 20 years from the commission of the act. Should criminal law provide for a longer period of prescription, such longer prescription prevails (Art. 937 CC). V.

FRAUDULENT CONVEYANCES

It is of the essence of the obligation that the debtor not only owes the debt but is also liable for not paying it. As indicated earlier (Section I A), liability entails, in last resort, the possibility of execution on the debtor’s property. This is done by having execution officials seize the property of the debtor as soon as the creditor has obtained an enforceable judgment, then sell it and hand the proceeds of the sale to the creditor (see Ch. 16, Section XIII D). Thus, the debtor’s property as a whole constitutes the fund to which his creditors can look for satisfaction of their claims. Creditors need, therefore, to be protected against the risk of seeing their debtor alienating his assets to their detriment. The Civil Code provides for such protection in Articles 939–946 (καταδολίευση δανειστών, katadolieusi daneiston). Protection is granted in the form of a personal action, similar to the actio pauliana of Roman law.21 A.

CONDITIONS

A creditor may treat alienation as an act in fraud of creditors and trace the property into the hands of anyone (Art. 939 CC) except a bona fide purchaser (Art. 941 I CC) for value if the following conditions are fulfilled: (a) A valid alienation of the whole or part of the debtor’s assets takes place, resulting in a decrease of the debtor’s property liable to execution by a creditor. Such alienation may occur in the form of either transfer of property or creation of new rights in favor of third parties or renunciation of existing rights. Mere promises, either contractual or non-contractual, 21. Alienations by debtors who are merchants are covered by special provisions (see Arts 537–541 LC). The defrauding of creditors is also criminalized; commission thereof entails punishment by fine or imprisonment (Art. 397 PC).

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Phoebus Chr. Christodoulou do not constitute alienations in the sense of Article 939 CC. However, neither the payment of a debt already due nor the renunciation of an inheritance are deemed as alienation for the purposes of the law (Art. 940 CC). (b) Such alienation or disposition results in the debtor’s inability to pay his debts in full, or intensifies his already existing insolvency. However, for the purposes of Article 939 CC, it is essential that the deficit in the debtor’s property exists at the time the action for revocation is filed and the proceedings thereon are initiated, no matter whether such deficit was caused by, or had already existed before such alienation. (c) The alienation is undertaken by the debtor deliberately with the intention to cause harm to his creditors (Art. 939 CC). (d) The beneficiary of the alienation knows that it takes place to the detriment of the creditors. No consensus exists among legal writers as to the question whether the knowledge of the third party should also cover the fact of the debtor’s insolvency. Since it will normally be difficult for the creditor to establish such knowledge by the third party, Article 941 II CC facilitates things by providing for a rebuttable presumption of knowledge by the third party in case such third party is the spouse or close relative of the debtor. If the third party is a gratuitous transferee, no knowledge by him is required for his liability under the rules relating to fraudulent conveyances (Art. 942 CC).

B.

PARTIES TO THE ACTION

The plaintiff in an action for revocation could be any creditor having a valid claim against the debtor at the time the alienation had taken place. In addition to the debtor, the defendant in such action could be the third party who has been the beneficiary of the alienation in question. The action for revocation might also be directed against the third party’s particular successor or successors in title in case the latter had notice or knowledge of the debtor’s fraud when acquiring from the third party. Presumptions of knowledge corresponding to those mentioned above also apply with respect to the said successors (Arts 944, 945 CC). C.

EFFECTS

The effect of a revocation is that the third party is bound to reinstate the previous position (Art. 943 I 1 CC). A revocation inures only to the creditors who challenged the alienation. Thus, an additional liability of the third party arises in favor of the creditors who obtained a judgment of revocation. Such liability runs parallel to the continuous liability of the debtor and refers to restitution of the acquired benefits or to toleration of executory measures initiated by the said creditors with regard to objects belonging to the alienated property. In order to avoid the danger

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of losing a right through execution, the third party is entitled to satisfy the creditor, in which case the creditor’s claim is transferred to him (Art. 319 CC; see above, Section I B 4 in f.). The claim for revocation is barred by prescription in five years from the time of alienation (Art. 946 CC). BIBLIOGRAPHY A.

BOOKS AND COMMENTARIES (in Greek)

G. Balis, Law of Obligations. General Part (3rd edn, Athens 1961). P. Filios, Law of Obligations, General Part (Athens, 2004), Special Part (Athens, 2005). Ap. Georgiadis and M. Stathopoulos (eds), Civil Code, Article-by-Article Commentary, vols II–IV (Athens, 1979–1982). Ap. Georgiadis, The Law of Obligations, General Part (Athens, 1999), Special Part, vol. I (Athens, 2004). P. Kornilakis, Special Part of the Law of Obligations, vol. I (Athens-Thessaloniki, 2002), vol. II (Athens-Thessaloniki, 2005). A. Ligeropoulos (ed.), Interpretation of the Civil Code (ErmAK): Law of Obligations, vols II–III (Athens, 1949–1978). A. Ligeropoulos, Elements of the Law of Obligations, vol. I (2nd edn, Athens, 1968), vol. II (Athens, 1960). G. Mantzoufas, Law of Obligations (Athens, 1971; reprint of the 3rd edn, Athens, 1959). J. Spyridakis, The Law of Obligations. General Part (Athens, 2004). M. Stathopoulos, General Law of Obligations (Athens-Thessaloniki, 2004). K. Triantaphyllopoulos, ‘Explanatory Report on the Draft of the Law of Obligations’ in Draft of a Civil Code Prepared by the Drafting Committee, Ministry of Justice (ed.), vol. II: Law of Obligations (Athens, 1935) 173–254. P. Zepos, Law of Obligations, vol. I: General Part (2nd edn, Athens, 1955), vol. II: Special Part (2nd edn, Athens, 1965). B.

ARTICLES IN LAW REVIEWS AND MONOGRAPHS (in languages other than Greek)

P. Agallopoulos-Zervoyannis, ‘La réparation du pretium doloris selon le droit hellénique’, RHDI 35–36 (1982–1983) 367–377. P. Agallopoulou, Basic Concepts of Greek Civil Law (translated into English by Y. Kotsovolou-Masry, Athens-Komotini, 2005). I. Deliyannis, ‘L’illicéité comme élément de la responsabilité civile extracontractuelle en droit hellénique’, RIDC 36 (1984) 77–111. P. Kanellopoulos, ‘Products Liability: The Developments of Problems in Foreign Law and Their Treatment under the Greek Law’, RHDI 32 (1979) 149–179.

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K.D. Kerameus and Kl. Roussos, ‘Confines and Limitation of Damages under Greek Law of Torts’, RHDI 48 (1995) 233–252. P. Kornilakis, Auf dem Wege zu einem europäischen Haftungsrecht – Der Beitrag Griechenlands (Saarbrücken, 1980). Th. Liacopoulos and G. Mentis, ‘Civil Liability for Pure Economic Loss in Greece’, RHDI 51 (1998) 61–69. A. Ligeropoulos, ‘Les clauses relatives à la monnaie de paiement et les clauses d’échelle mobile dans les contrats (droit hellénique)’, RHDI 8 (1955) 20–29. G. Mantzoufas, Über griechisches Privatrecht (Athens, 1956). I. Rokas, ‘Civil Liability and Insurance of Providers of Services under Greek Law’, RHDI 35–36 (1982–1983) 271–279. C. Simantiras, ‘La validité des clauses de non-responsabilité ou limitatives de responsabilité’, RHDI 28 (1975) 106–126. M. Stathopoulos, Contract Law in Hellas (The Hague-London-Boston-Athens, 1995). P. Zepos, ‘Frustration of Contract in Comparative Law and in the New Greek Civil Code of 1946’, Mod.LR 11 (1948) 36–46. P. Zepos, ‘Le problème du cumul des responsabilités contractuelle et délictuelle en droit hellénique’, RHDI 15 (1962) 256–262. P. Zepos, ‘20 Years of Civil Code: Achievements and Objectives’, RHDI 20 (1967) 15–27. P. Zepos, ‘Equity in Greek Law’ in Equity in the World’s Legal Systems, R.A. Newman (ed.) (Brussels, 1973) 433–441. C.

OTHER

G.H. Lawson, A Common Lawyer Looks at the Civil Law (Westport, Connecticut, 1977; reprint of the Ann Arbor, MI, 1953 edn). P. Zepos and P. Christodoulou, ‘Professional Liability’ in International Encyclopedia of Comparative Law, vol. XI: Torts, part I (Tübingen-The Hague-BostonLondon, 1983) 6-3 to 6-71. K. Zweigert and H. Kötz, An Introduction to Comparative Law (translated by T. Weir, 3rd revised edn, Oxford, 1998).

Chapter 7

Property Athanassios N. Yiannopoulos*

I.

INTRODUCTION

Book III of the Civil Code, consisting of Articles 947 through 1345, contains the basic provisions dealing with property law. The substance of these Articles has been derived from the Roman tradition, indigenous Greek variations developed in the 19th century, and certain modern civil codes. The influence of the French, German, and Swiss civil codes is particularly noticeable. In Greece, as in most Civil Law jurisdictions, the number of real rights is limited (numerus clausus): ownership, personal and predial servitudes, pledge, and mortgage. Possession and detention are sui generis rights, neither real nor personal. Real rights other than those enumerated may not be created nor may the features of these rights be altered unless otherwise provided by law (see below, under IV). The creation of a real right is a real transaction, and as such subject to the rule of temporal priority (prior tempore potior iure). Real rights may be of limited duration, either by law or by agreement, and may be subject to a term or a condition. When a real right is extinguished with retroactive effect, all real rights granted by the holder of that right are also extinguished in the absence of contrary provision of law. *

Eason-Weinmann Professor of Comparative Law, Tulane University.

Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 153–166. © 2008, Kluwer Law International BV, The Netherlands.

154 II.

Athanassios N. Yiannopoulos THINGS

Articles 947 through 973 CC establish the notion of things as objects of property rights and their division into several broad categories, such as movables and immovables, fungibles and non-fungibles, consumables and non-consumables, component parts and accessories, fruits and profits, and things ‘in commerce’ and ‘out of commerce’. A.

OBJECT AND THING (αντικείμενο, antikeimeno; πράγμα, pragma)

Following the model of the German Civil Code, the Civil Code distinguishes aptly between object1 and thing. The word object applies to anything that may be the subject of a legal relation, with the exception of strictly personal relations. An object may be anything having a pecuniary value, whether corporeal or incorporeal. A thing is a corporeal object that is susceptible of appropriation. Ownership and other real rights may attach, as a rule, on things only and not on incorporeals. Thus, rights having a pecuniary value, though forming part of a person’s patrimony, are not governed by the law of property. By way of exception, incorporeals are susceptible of usufruct and pledge, and the usufruct of an immovable is susceptible of mortgage. Fluid and gaseous substances are corporeal and, as soon as they acquire the mark of individual existence, become things. Natural forces and energies, though incorporeal, are by means of a legal fiction classified as things.2 Thus, producers of energy enjoy in Greece full proprietary protection. Rights, aggregates of things, and universalities of rights, or of rights and things, such as an entire patrimony or an enterprise, are incorporeal; therefore, they are not things under the Civil Code. The incidents of human personality are not things susceptible of appropriation. Thus, one’s name, likeness, liberty, personal integrity, and honor are not objects of property, but incidents of a comprehensive ‘right of personality’3 that 1. Articles 175, 239, 304 CC deal with objects. See also BGB §90; L. Enneccerus and H.-C. Nipperdey, Allgemeinerdes Buergerlichen Rechts: Ein Lehrbuch (15th edn, Tübingen, 1959–1960) 760. 2. See Article 947 II CC. It is otherwise under the German Civil Code; see A. Kloess, ‘Die Energien in- und ausserhalb des Verkehrs und das Eigenrecht an ihnen’, Archiv fiir die civilistische Praxis 103 (1908) 34, 67. 3. In accordance with the modern trend, Article 57 CC establishes an all-inclusive right of personality: ‘He who suffers an illegal invasion in his personality is entitled to request the suppression of the invasion and an injunction for the future. If the offense concerns the personality of a deceased, the right belongs to the spouse, descendants, ascendants, brothers and sisters, and testamentary heirs. An additional claim for damages in accordance with the provisions governing delictual responsibility is not excluded’; see further Ch. 5, Section II E. The Civil Code also recognizes the right to one’s own name (Art. 58) and the right to the products of one’s intellect (Art. 60).

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is accorded an almost absolute protection without regard to rules of property law. A living human body and its members or parts are incidents of human personality rather than objects of patrimonial rights. Upon death, however, a human body becomes a thing; and certain parts, such as blood, hair or internal organs, may become things upon their separation from a living human body. B.

MOVABLES AND IMMOVABLES – COMPONENT PARTS ACCESSORIES (κινητά, kinita; ακίνητα, akinita; συστατικά, systatika; παραρτήματα, parartimata) AND

In Greece, as in other Civil Law jurisdictions, things are divided into movables and immovables. These terms correspond roughly to the division of property in Common Law jurisdictions into personal property (personalty) and real property (realty). Immovables are the ground and its component parts. Movables are all things that are not classified as immovables. The division of things into movables and immovables applies to corporeal objects only, with one modification: when the law or juridical acts refer to movable property, as distinguished from immovable property, among the movables are included all obligations and among the immovables the usufruct of immovables and predial servitudes (see Arts 948, 949 CC). Most provisions of law governing the classification of things as movables or immovables are considered to be rules of public order, from which derogation by agreement is forbidden. The component parts of an immovable may be either movables or immovables; the component parts of a movable may only be movables. Certain component parts are susceptible of separate real rights but others are not. Things insusceptible of separate real rights are those firmly fixed to the ground, especially buildings, movables incorporated into a structure or building, vegetation and mineral substances, water under the surface, seeds when sown, and plants when planted. The list is considered to be exclusive rather than indicative. The Code provides expressly that things attached to the ground or building for temporary purposes, though firmly fixed, do not become component parts insusceptible of separate real rights. The same rule applies to buildings and other structures erected on the ground of another by a usufructuary or other person having a real right. These things remain movable and are susceptible of real rights separate from those in the land. The practical consequences of the characterization of a thing as a component part insusceptible of separate real rights are significant. The owner is always free to terminate the status by actual detachment, but so long as it lasts separate ownership and separate real rights are not recognized. Seizure, and any transfer or encumbrance, include all component parts of this kind, even if incorporated subsequently. However, according to special legislation, machinery in industrial plants, in order to be included in a real mortgage, must be mentioned specifically; and standing crops may be seized separately from the land. Real rights affecting

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movables prior to incorporation are extinguished and do not revive upon detachment. Real rights acquired on component parts of a thing by incorporation continue to exist even after the movables are detached. Exception is made as to the rights of a real mortgagee; movables covered by the mortgage may be detached and transferred to third persons free of the mortgage. Parties may in their private relations establish personal rights with respect to component parts insusceptible of real rights. Thus, the sale of standing crops, standing timber, and mineral substances are valid transactions if made according to the formalities governing movables. But no real rights are created and, in case of non-performance, the purchaser is entitled to damages only. Component parts are distinguished from accessories. An accessory is a movable which, without being a component part of the principal thing, is destined to serve its economic purpose and has been placed with regard to the principal thing in a space relationship appropriate to its destination (Art. 956 CC). The principal thing may be a corporeal movable or immovable; the accessory must be a corporeal movable.4 Rules governing classification of a thing as a principal or accessory are suppletive. The significance of the classification is that, in certain instances, the law regards the two as an economic unit and the transfer or encumbrance of the principal thing includes the accessory: accessorium sequit principali. However, unlike an inseparable component part, one may own the accessory of a thing belonging to another or may have another real right in it. C.

FUNGIBLES (αντικαταστατά, antikatastata)

Fungibles are movables that are ordinarily determined by number, measure or weight. This quality is determined by objective criteria and notions prevailing in trade. The distinction is important in the field of obligations and particularly for the contracts of loan, deposit, and annuity. Responsibility for the loss or deterioration of a fungible is discharged by the delivery of similar things, while with regard to non-fungibles a money judgment is the only permissible substitute. D.

CONSUMABLES (αναλωτά, analota)

Consumables are movables the intended use of which consists in their consumption or alienation. Stocks of goods and other aggregations of things the intended use of which is the alienation of the objects singly are likewise considered to be consumables. The quality of consumability depends on objective criteria and prevailing notions in trade rather than physical notions. The division has practical consequences in that, depending upon the classification, one may be under a duty to return either individual things or things of like quantity and quality. 4. Accessories are susceptible of separate real rights.

Property E.

157 THINGS ‘OUT OF COMMERCE’ (εκτός συναλλαγής, ektos synallagis)

The Civil Code has retained this special category that includes things common to all, things subject to public use and things dedicated to serve public, municipal, communal, or religious purposes. Things common to all are the air and, perhaps, the open sea. Things subject to public use are, particularly, freely and perpetually running water, roads, public squares, the seashore, harbors and roadsteads, the banks of navigable rivers, large lakes and their shores. The list is illustrative. Things subject to public use may belong to the state, to towns or communities, or to private persons when this is authorized by statute (Art. 968 CC). The owner of a thing subject to public use may exercise all prerogatives of ownership that are compatible with public use. The last category of things out of commerce encompasses all sorts of things dedicated to a public purpose other than public use, including state-owned buildings housing governmental offices and educational and health institutions. Municipal buildings housing municipal offices and institutions belong to the same category. State and municipal enterprises, whether autonomous or not, may serve public purposes. The accepted criterion is whether the main purpose of the enterprise is to produce revenue or to serve the public. The state-owned railroad and telecommunications systems and electric utilities have been regarded as serving a public purpose and, therefore, as things out of commerce. Finally, to this category belong religious institutions and cemeteries. Once their special-purpose use ceases, things out of commerce lose this quality and become like other things. F.

FRUITS (καρποί, karpoi) AND PROFITS (ωφελήματα, ofelimata)

The Civil Code, following the pattern of Roman-Byzantine law, distinguishes fruits into natural and civil. In addition, following the German Civil Code, it distinguishes between fruits of things and fruits of rights and introduces the notion of profits.5 Fruits of things are organic products, advantages obtained according to the destination of a thing, and any revenue a thing may produce by operation of law or by virtue of a legal relation. According to the prevailing view, organic products are regarded as fruits only if the substance of the principal thing is preserved. The destination of a thing as fruit-producing is determined by reference to its nature, prevailing conceptions in society, and the intention of the parties to a transaction. Fruits of rights are royalties and interests deriving from rights other than ownership.

5.

See Article 962 CC: ‘Profits are not only the fruits of a thing or of a right, but also every advantage which the use of the thing or of the right confers.’

158 III.

Athanassios N. Yiannopoulos POSSESSION (νομή, nomi)

Possession and possessory actions are dealt with in Articles 974 through 998 CC. These Articles reflect solutions developed by Greek doctrine and court decisions in the course of the 19th and 20th centuries. The complicated scheme of the German Civil Code was an example to avoid. Distinction is made between possession and detention (κατοχή, katochi). Possession is the exercise of physical control over a thing with the intent to own it; absent such intent, we have only detention. The rules governing possession apply by analogy to quasi-possession (οιονεί νομή, oionei nomi), that is, the exercise of a real right with the intent to have it as one’s own. Detailed provisions deal with acquisition, exercise, loss, and protection of possession. Possession is protected by the privilege of self-help and several actions. Any possessor, however wrongful his possession may be, is entitled to protect his possession by the exercise of reasonable force. The same privilege is accorded to persons possessing on behalf of a master or principal. A possessor evicted unlawfully and without his consent has an action for the recovery of possession (αγωγή αποβολής, agogi apovolis). When possession is exercised through a detentor, such as a lessee, the action may be brought by either the detentor or the possessor. When it is usurped by the detentor, the possessor may bring the possessory action against him. But an evicted detentor has no possessory action against the person from whom he derived his detention, for example, against the lessor. Defendant is the person who evicted plaintiff, if he is still in possession at the time of the commencement of the action, whether he exercises possession personally or through others. If at the time of the commencement of the action the defendant is out of possession, plaintiff may either sue him for damages under the law of delictual obligations or proceed against any third person whose possession is defective vis-à-vis the plaintiff. If, after commencement of the action, the defendant transfers possession to a third person or otherwise loses it, the proceeding continues regularly and the judgment is ordinarily executed against any person who took possession pendente lite (Arts 225, 325 CCiv.P).6 The eviction action may be cumulated with an action for the return of the thing by virtue of a personal right. A disturbance of possession that falls short of eviction is also actionable by a suit seeking judgment suppressing the disturbance and prohibiting future invasions (αγωγή διατάραξης, agogi diataraxis). The defendant may oppose both possessory actions on the ground of defective possession, i.e., that plaintiff acquired possession wrongfully vis-à-vis the defendant or his ancestors during the year prior to the eviction or disturbance (Art. 998 CC). He cannot assert a right by virtue of which he may be entitled to possession unless this right has been recognized by a res judicata-producing judgment 6.

See K. Makridou, ‘Proceedings in First Instance’ in Code of Civil Procedure: Article-by-Article Commentary, vol. I: Articles 1–590, K.D. Kerameus, D.G. Kondylis, N.Th. Nikas (eds) (Thessaloniki, 2000) 496–498 [in Greek]; S. Koussoulis, ‘Res Judicata’, ibid. 653–658 [in Greek].

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between plaintiff and the defendant. Both actions prescribe in a year from the time of the eviction or other disturbance. Rights to possession may be determined, independently of any possessory action, in a summary proceeding for ‘provisional remedies for the temporary regulation of possession or detention’ where the court may award possession on the basis of a cursory examination of the merits of the case (provisional remedies; Arts 733, 734 CCiv.P; see below, Ch. 16, Section X D). The disposition has no res judicata effect in a subsequent possessory action. Possession, being a patrimonial right under the Civil Code, is also protected by actions for declaratory judgment, unjust enrichment and damages under the law of delictual obligations. IV.

OWNERSHIP (κυριότητα, kyriotita)

Articles 999 through 1141 CC deal with the institutions of ownership and coownership. In these fields, the traditional conceptions have undergone substantial changes. Ownership, though an exclusive right over a thing, no longer enjoys the status of an absolute dominium. Clearly defined neighborhood rights are established, expropriation in the public interest after due compensation is possible (see Ch. 3, Section IV D 9), and acts performed by third persons above or under the soil may not be enjoined if not harmful to the owner’s interest. Further, in contrast to the Roman law, horizontal as well as vertical division of immovables and separate ownership of apartments are legally possible. Additionally, comprehensive legislation has been enacted governing timesharing (χρονομεριστική μίσθωση, chronomeristiki misthosi; see Law 1652/1986 and Presidential Decrees 182/1999 and 293/2001). Compared with the Common Law doctrine of estates, ownership in Civil Law jurisdictions is the essence of simplicity. No abstraction such as an estate is interposed between the owner and his property, nor is ownership built on ownership as in the case of a trust. The content of ownership may be limited, as when charges on the land such as servitude are created but these charges are regarded as restrictions on the use of land, rather than as rights of separate or concurrent ownership. Upon the disappearance of an encumbrance, ownership resumes its original plenitude, leaving no room for the concept of a remainder or a reversionary interest. Trusts, as known in Common Law jurisdictions and certain mixed jurisdictions, may not be created under domestic Greek law (see Ch. 10, Section II H 2). However, foreign trust agreements may be recognized and be given effect under Greek private international law or international conventions (see Ch. 17, Section I C). Ordinarily, a person has both the management and the enjoyment of his property, and ownership cannot be fragmented into the components of legal title and beneficial enjoyment. An owner may entrust the management of his property to a mandatory or other representative, and a person may manage the affairs of another without mandate (negotiorum gestio; see Ch. 6, Section II I in f.). Further, the law allows the separation of management from the enjoyment of property when a person is incompetent to manage his own affairs on account of minority,

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absence or unsound mind. In such cases, the management of property is entrusted to a tutor or a curator. The fragmentation of ownership into a legal estate and an equitable interest is an original Common Law institution. There is no equivalent institution in Civil Law jurisdictions unless one may regard as equivalent a substitution or fideicommissum (see Ch. 10, Section II H 2), whereby the instituted heir or legatee is bound to restore the succession to another person. But the analogy fails, because the instituted heir has both management and beneficial enjoyment so long as his right lasts. Nearly everything that a trust can accomplish may be actually achieved within the framework of the Civil Law by contract or by will, the policies of the law permitting. When something achievable with the trust is not achievable under the Civil Law, it is usually because the result is forbidden for reasons of social policy. A.

ACQUISITION OF OWNERSHIP

Ownership may be acquired in a variety of ways, as by occupancy of things that belong to no one, by transfer from a previous owner or even by a non-owner, by operation of law, by the effect of judgments, and by acts of the public authorities. For systematic purposes, distinction may be made between original and derivative acquisition of property rights. An original acquisition involves the creation of a new property right; it is independent of any pre-existing rights over the same thing. A derivative acquisition involves a transfer of a pre-existing right from one person to another. The distinction between the two modes of acquisition is important in the light of the civilian maxim that no one can transfer a greater right than one has. This means that, ordinarily, the transferor must be owner and must transfer the property as it may be burdened with rights of third persons. However, the scope of the maxim has been narrowed by exceptions. Thus, ownership of movables that are neither lost nor stolen may be transferred by a non-owner to a good faith transferee. Moreover, money and negotiable instruments may be transferred even if they are stolen from, or lost by, their owner. Land, as a rule, must be transferred by the owner, subject to qualifications generated by the system of publicity of transactions. B.

ORIGINAL ACQUISITION (πρωτότυπη κτήση, prototypi ktisi)

There is a variety of original modes of acquisition of ownership, including occupancy, finding, accession, acquisitive prescription, and expropriation. Occupancy is the taking of possession of things that belong to no one (res nullius). This is limited to certain movables, such as wild animals, birds, fish, and abandoned things. Akin to occupancy is the finding of lost things and the trove of a treasure. Lost things have an owner, but the law attributes ownership to the finder after lapse of a certain period of time from the completion of certain formalities such

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as advertisements or reports to the authorities. A treasure trove is divided between the finder and the owner of the property in which the treasure was hidden. Accession is based on the principle that the ownership of a thing carries with it the right to whatever the thing produces, and to certain other things that are united with it, whether naturally or artificially. Ownership of the soil carries with it ownership of all that is directly above and under it, unless the contrary is established by provision of law or contract; therefore, buildings and other constructions erected by trespassers on the land of another become the property of the landowner. Moreover, certain fixtures attached to the land of another may become his property even if the annexer acted in good faith and within the framework of a contractual right. Alluvion formations, created by imperceptible additions to the banks of rivers, and islands formed in the beds of non-navigable rivers, belong likewise by accession to the riparian owners. Detailed provisions deal with accession to movables which, apart from the increase of animals, ordinarily takes place in cases of adjunction of materials belonging to different owners, mixture of grains or fluids, and in cases of production of new things by labor bestowed on the materials of another person. Acquisitive prescription (χρησικτησία, chrisiktisia), similar to adverse possession (see Ch. 5, Section VIII A 2), is predicated on the possession of a thing over a designated period of time with the intent to own it. One who possesses in good faith acquires a movable in three years and an immovable in ten years, whereas one who possesses in bad faith acquires a thing, whether movable or immovable, in 20 years. Expropriation is essentially a matter of public law (see Ch. 3, Section IV D 9). Governing constitutional provisions and other legislative texts provide for notice and payment of full compensation to the owner, meaning adequate, effective and prompt. C.

DERIVATIVE ACQUISITION (παράγωγη κτήση, paragogi ktisi)

This mode ordinarily involves a transfer from a previous owner. The transfer may be voluntary, such as by agreement, or involuntary, as in the case of a judicial sale. The transfer of ownership by contract is subject to different requirements for movables and immovables. For movables, an informal agreement and delivery of possession of the thing complete the transfer. For the transfer of the ownership of immovables, the law requires an agreement between the owner and the transferee that the ownership is transferred for a lawful cause, the execution of this agreement in the notarial form, and its recordation in the conveyance records in the district in which the immovable is located. D.

PROTECTION OF OWNERSHIP

Ownership and other real rights are protected by a variety of real and personal actions. Articles 1094 through 1112 CC deal specifically with the revendicatory action, the publician action and the negatory action.

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The revendicatory action (διεκδικητική αγωγή, diekdikitiki agogi) is brought by a dispossessed owner against a possessing non-owner for the recognition of his ownership and return of the thing with its fruits and profits. This action is available for both movables and immovables. Plaintiff is the dispossessed owner or a person to whom such an owner has assigned the revendicatory action. Defendant is a person having possession or detention of the thing at the time of the commencement of the action. The dispossessed owner has against a former possessor an action in damages and against a person out of possession who claims ownership adversely to him an action for declaratory judgment, but may not pursue the revendicatory action. When the action is brought against the possessor, a judgment against him will be executed against any detentor who has physical control over the thing on behalf of the possessor. When the action is addressed against one exercising quasipossession, or against a detentor, the defendant is entitled to implead the person for whom he possesses. A judgment rendered against one who exercises quasipossession or against a detentor has no res judicata effect against the possessor unless he has been made a party to the proceeding (Art. 325 CCiv.P).7 The plaintiff has the burden of proof (see Ch. 16, Section VII C) unless the defendant concedes plaintiff’s prior ownership and asserts affirmatively his own right of ownership. In such a case, the burden of proof shifts to the defendant. Proving ownership of immovable property is a hard task that necessitates the tracing of land titles when possession is not in excess of 20 years. The burden of proof is alleviated when one may avail himself of the publician action (πουβλικιανή αγωγή, pouvlikiani agogi). By this action, a prior possessor of immovable property under just title and in good faith may recover it from a possessor in bad faith without having to prove ownership. Ownership of movable property is proved with the assistance of two presumptions. The present possessor of movables is presumed to be owner but this may be rebutted on proof of dispossession as a result of loss or theft. In such a case, a presumption arises that the plaintiff was owner during the period of his possession. This presumption is likewise rebuttable. The publician action is very similar in its function to the revendicatory action and is governed by the same rules applied by analogy. By its nature, the action may not be brought against the owner or against a person situated in the same position as the plaintiff. The action applies to immovable property only, because under the Civil Code one may acquire ownership of movables by transfer from a non-owner and the present possessor of a movable benefits from a presumption of ownership in his favor. The negatory action (αρνητική αγωγή, arnitiki agogi) is an indirect descendant of the Roman actio negatoria, a remedy available to an owner in possession against a person claiming a right of servitude. It is available for the protection of ownership and of other real rights against any interference that falls short of eviction. The negatory action applies to both movables and immovables, and its 7.

See Makridou, above, ftn. 6.

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purpose is to secure a judgment ordering the suppression of the interference and an injunction for the future. V.

PREDIAL AND PERSONAL SERVITUDES (πραγματικές και προσωπικές δουλείες, pragmatikes kai prosopikes douleies)

Articles 1118 through 1141 CC deal with predial servitudes, that is, charges imposed on an immovable in favor of another immovable belonging to another owner. In accordance with the Romanist tradition, predial servitudes may not involve affirmative duties for the owner of the servient immovable. Such duties may be undertaken by virtue of personal obligations only. Detailed provisions in the Civil Code determine the modes of acquisition of predial servitudes by juridical act and by acquisitive prescription, their exercise, their protection by the confessory action, and their extinction by non-use and other causes. Articles 1142 through 1191 CC deal with the personal servitudes of usufruct and habitation and the various innominate limited personal servitudes. These are charges on property imposed in favor of a person. Usufruct (επικαρπία, epikarpia) may burden both movables and immovables; habitation (οίκηση, oikisi) and limited personal servitudes (περιορισμένες προσωπικές δουλείες, periorismenes prosopikes douleies) may burden immovables only. Usufruct is a real right of enjoyment of limited duration that is exercised on a non-consumable belonging to another person under the obligation of preserving the substance of the thing. The usufructuary has the right to draw all the advantages and utility that the thing may produce, as if he were owner, but he must restore the thing at the end of the usufruct. Such a right over consumables is qualified in civilian theory as a quasi-usufruct, under which there is an obligation to return to the owner at the end of the usufruct either the value of the things or things of the same quantity and quality. The usufructuary may protect his right by all sorts of real and personal actions. He is required to deal with the property as a prudent administrator, maintain its destination, and undertake the necessary maintenance and ordinary repairs. VI.

RECORDATION (μεταγραφή, metagrafi)

Articles 1192 through 1208 CC deal with the requirement, formalities, priority, and effect of recordation of certain acts in the conveyance records. These provisions reflect for the most part the influence of French legislation, doctrine and court decisions. The acts that are subject to the requirement of recordation are: inter vivos juridical acts, including gifts mortis causa, by which real rights in immovables are established, transferred or cancelled; adjudications of real rights in immovables; partitions of immovables; and final non-appealable judicial decisions mandating

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declarations of will for real juridical acts concerning immovables. In the absence of recordation, there can be neither transfer of ownership nor creation, transfer or cancellation of another real right in an immovable. The annulment of a recorded act by a final non-appealable decision affects third persons from the time of the recordation of the judicial decision in the margin of the annulled act. Traditionally, entries in the conveyance records are made according to the names of persons executing acts that affect immovable property rather than the location and description of the immovable property. That system of recordation satisfies only partially the requirements for publicity of acts involving immovable property, because the public records merely show the existence of an act and fall short of certifying its validity. In order to enhance the effects of publicity, the system of a land registry previously existing only in parts of the Dodecanese Islands has been extended to the entire country (Laws 2308/1995 and 2664/1998). The new legislation set up the National Land Registry (Εθνικό Κτηματολόγιο, Ethniko Ktimatologio), which provides legal, technical and other pertinent information on all immovable property within Greece. Entries are based on land ownership and are managed by the newly-established Land Registry and Mapping Organization. However, the transition from the traditional system of recordation to the new one has proven slow and cumbersome and has not been implemented everywhere in the country. VII.

REAL SECURITY RIGHTS (εμπράγματη ασφάλεια, empragmati asfaleia)

The last two chapters of Book III of the Civil Code, consisting of Articles 1209 through 1345, deal with real security rights: pledge (ενέχυρο, enechyro) and real mortgage (υποθήκη, ypothiki). Pledge is a real right established on another’s movable to secure an obligation by means of preferential satisfaction of the creditor. It is an accessory and indivisible real right that may secure a conditional or even a future obligation. For the creation of a pledge, the law requires an agreement between the owner and the creditor and delivery of the possession. The agreement must be dressed in the notarial form or be made by an act under private signature that has a date certain and adequately describes the debt and the thing. Negotiable instruments are pledged in the same way as corporeal movables. Incorporeals, that is rights and claims, may be pledged if they are susceptible of transfer or assignment; they are pledged in the same way as they are transferred or assigned. In the case of a pledge of a claim, notice of the creation of the pledge must be given to the debtor. The Civil Code provides also for a pledge that does not involve delivery of the possession of the movable to the creditor (πλασματικό ενέχυρο, plasmatiko enechyro). This kind of pledge, corresponding with a Common Law chattel mortgage, is created by the recordation of the pledge agreement in public records established by special legislation. That form of pledge, however, has not been fully

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implemented. The contemplated special legislation establishing the appropriate public records applies only to professional and company-related forms of real security (see Law 2844/2000, effective October 2001; Presidential Decree 253/2001). Mortgage is a real right established on another’s immovable to secure an obligation by means of preferential satisfaction of the creditor. A mortgage is an accessory and indivisible right that may secure a conditional or even a future obligation; it may only be established on an immovable or on the usufruct of an immovable for as long as the usufruct lasts. By virtue of special legislation as well as under the Code of Private Maritime Law, a mortgage may also be established on a ship (see Ch. 13, Section IV A; Ch. 17, Section I G). For the creation of a mortgage, the law requires a title granting a mortgage and recordation; the possession of the immovable is not conveyed to the creditor. The requisite title may be the law, a judicial decision, or the will of a private person. Thus, a mortgage may be legal, judicial, or conventional. The right for the recordation of a conventional mortgage may be granted by the debtor of the principal obligation or by a third person in favor of the debtor of that obligation. Under penalty of nullity, the grantor of the mortgage must be owner of the immovable, and if the mortgage burdens a usufruct, the grantor must be the usufructuary. The mortgage exists from the time of the appropriate recordation in the mortgage records of the district in which the immovable is situated. The date of recordation determines the preference of mortgages; mortgages recorded on the same date enjoy the same ranking. Detailed provisions in the Civil Code regulate the rights and obligations of the owner of the mortgaged immovable, the rights of the secured creditor, the process for the enforcement of the mortgage, the extinction of the mortgage and the cancellation of recordation. BIBLIOGRAPHY (in Greek unless otherwise inferred) P. Agallopoulou, Basic Concepts of Greek Civil Law (translated and edited in English by Y. Kotsovolou-Masry) (Athens, 2005). G. Balis, General Principles of Civil Law (8th edn, Athens-Thessaloniki, 1961). G. Balis, Property Law (4th edn, Athens, 1961). A. Bournias, ‘La propriété horizontale comme elle est appliquée actuellement en Grèce’, RHDI 23 (1970) 239–307. E. Dacoronia, ‘Time-sharing in Greece’, RHDI 44 (1991) 211–222. C. Deliyianni-Dimitrakou, Trust and Fiducia. A Comparative Consideration (Thessaloniki, 1998). P.C. Filios, The Law of Property (2nd edn, Athens, 2005). A. Georgiadis, Property Law, vols I, II (Athens, 1991–1993). Y. Karibali-Tsiptsiou, ‘Greece’ in International Encyclopedia of Laws. Property and Trust Law, R. Blanpain (ed.) (The Hague-London-New York; loose-leaf publication, 2003).

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K.D. Kerameus, D.G. Kondylis and N.T. Nikas, Code of Civil Procedure: Articleby-Article Commentary, vol. I: Articles 1–590 (Thessaloniki, 2000). L. Kitsaras, Initial Entries in the Land Registry (Athens, 2001). C. Kousoulas, The Law Relating to the Land Registry (Athens-Thessaloniki, 2001). A. Koutsouradis, ‘Present and Future of Real and Personal Security’, RHDI 55 (2002) 49–67. A. Papachristou, Civil Law Property. Article-by-Article Interpretation (Athens, 1981). I. Spyridakis, Property Law, vols I, II/1, III (Athens, 2001). A. Toussis, Property Law (4th edn, Athens, 1988). K. Vavouskos, Property Law (6th edn, Thessaloniki, 1986). A. Yiannopoulos, Personal Servitudes (4th edn, St. Paul, Minn., 2000). A. Yiannopoulos, Civil Law Property (4th edn, St. Paul, Minn., 2001). A. Yiannopoulos, Predial Servitudes (3rd edn, St. Paul, Minn., 2004). P. Zepos, Greek Law: Three Lectures Delivered at Cambridge and Oxford (Athens, 1949). P. Zepos, ‘Law of Things and Real Actions in Greece’, 29 Tul.LR (1955) 697–712.

Chapter 8

Urban and Regional Planning and Zoning Georgia Giannakourou*

I.

OVERVIEW

Greece is part of the so-called ‘urbanism’ planning tradition which, according to the EU Compendium of Spatial Planning Systems and Policies, ‘has a strong architectural flavor and concern with urban design, townscape and building control.’1 This tradition, which is rather characteristic of the Mediterranean countries, highlights the main features of the Greek planning system: multiplicity of laws, predominance of a ‘command and control’ type regulation, lack of efficient monitoring and control mechanisms and low level of public support and awareness. Within the Greek planning system, land-use regulation mainly takes place through rigid zoning and statutory plans. Reaction to changing circumstances is slow and cumbersome, whilst departures from plans that could incorporate greater flexibility for developers and the competent authorities on permissible land uses are not formally provided. Indeed, an important gap exists between established plans and reality. Unauthorized urban development and especially unlawful * Associate Professor of Planning Law, Department of Planning and Regional Development, University of Thessaly. 1. European Commission, Directorate-General for Regional Policy and Cohesion (Luxembourg, 1997) 37. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 167–177. © 2008, Kluwer Law International BV, The Netherlands.

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building is one of the major problems of the planning practice in Greece, reacting to the formal rigidity of the rules and pointing out the need to provide for more effective and responsive planning legislation. Until recently, Greek planning legislation was dominated by issues of physical planning. Its main concerns were the interface between private and public land ownership and the development rights of landowners. However, in the late 1990s, a shift was made towards strategic spatial planning through the enactment of a new law on national and regional planning (Law 2742/1999). The novel provisions of the new law attest to a direct influence of the EU planning debate on the Greek national planning agenda. The impact of the EU was not only felt in the field of strategic planning. Community legislation on environmental protection and especially the Directives on environmental impact assessment2 have been in Greece, as in most European countries, a powerful force in shaping land use and development patterns. Furthermore, the notion of ‘sustainability’, enshrined into the EC Treaty (Article 2), has become a major factor both for the legislator and the courts in formulating new principles for urban and regional planning.3 II.

CONSTITUTIONAL FRAMEWORK

The Constitution draws the lines within which the legislature and the administration must proceed when taking specific measures concerning urban and regional planning. The most important Article of the Constitution, as far as urban and regional planning is concerned, is Article 24, which places it under state control and provides further for the contribution of the landowners towards securing land for social facilities and amenities. It also refers to the protection of the environment (both natural and cultural) as an obligation of the state and as an individual right. In interpreting this Article, the Council of State has elaborated a series of judicial principles, which do not only seek to promote a plan-led system of land development4 but tend further to block any amendment of building rules and land uses that does not aim at the improvement of the built environment.5 2. Council Directive 85/337 of June 27, 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175/40–48, 1985 as amended by Council Directive 97/11 of March 3, 1997, OJ L 073/5–15, 1997. 3. In this regard, see especially Laws 2508/1997 and 2742/1999 integrating patterns of sustainable development in urban and regional planning processes respectively. 4. See, among others, SE 3249/2000, DD 13 (2001) 112–113; 1163/2002, , June 6, 2006; 2319/2002, NoB 51 (2003) 924–926; 2506/2002, , June 6, 2006; and 2569/2004, NoB 53 (2005) 369–374 which, in interpreting Article 24 Const., consider urban and regional planning as a prerequisite for the location of productive activities and public infrastructure projects in specific sites. 5. This judicial principle, known in Greek under the term of ‘urban acquis’, was introduced in 1988 by SE (full bench) 10/1988, ToS 14 (1988) 117–122, which declared as unconstitutional the provisions of the building law (Law 1577/1985) permitting the deterioration of living conditions in the urban areas. For more recent developments of this jurisprudence, see SE (full bench) 1528/2003, PkD 7 (2003) 555–560 and 1567/2005, , June 6, 2006.

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Additionally, Article 17 Const. guarantees the right to property, allowing for expropriation only for the public benefit and only upon full compensation (see Ch. 3, Section IV D 9). Compensation is paid either in money or in kind, i.e. land replacement or transfer of development rights. The Constitution does not directly recognize a right to compensation for reduction in property values due to planning, zoning or development-control decisions, known elsewhere as ‘regulatory takings’. However, land-use regulations that eliminate all economically beneficial uses of property can be recognized under certain conditions as de facto expropriations subject to the compensation provisions of Article 17 Const. With regard to the question of regulatory takings, the Council of State has tried to delineate a boundary between lands included in the official town plans and those outside such plans. The former are deemed to be lawfully designated for residential uses or other development purposes and thus to be compensable under constitutional provisions if a deprivation of building rights ensues.6 On the contrary, the latter are considered to be lawfully destined for agricultural use and, therefore, can suffer more severe land-use and building restrictions. These restrictions can even amount to a full prohibition on building without, however, being regarded by the courts as an indirect expropriation or an equivalent measure.7 The Constitution also provides for the redistribution of rural property, aiming at the better exploitation of land (Art. 18 IV), and recognizes finally the responsibility of the state to care for the provision of housing to homeless or inadequately sheltered people (Art. 21 IV). III.

PLANNING LEGISLATION

Town planning legislation has a history of over a century in Greece. The first universal town planning legislation came into force in 1923 (Law Decree of July 17, 1923) and was applied for over 50 years with a lot of incremental changes undergone in the initial texts during this period. On the contrary, regional planning legislation is more recent. In fact, it is within the current Constitution and Law 360/1976 that the first legal provisions on regional planning were introduced. Today, apart from the constitutional provisions, the main body of general planning law consists of three major legislative acts: Law 2742/1999, which concerns the territorial spatial planning on national and regional levels, Law 2508/1997 concerned with sustainable urban planning and, finally, the building law (Law 1577/1985, as amended and supplemented by Laws 1772/1988 and 2831/2000), which comprises the general rules for the erection of buildings and other structures on plots and parcels of land. In addition to this general legislation, a special body of laws and presidential decrees provides for planning and building in particular categories of areas and settlements. Finally, core-planning legislation 6. 7.

SE (full bench) 3146/1986, ToS 13 (1987) 146–149. SE 982/2005, NoB 53 (2005) 1683–1686; 2604/2005, , June 6, 2006 (with notes by A. Papakonstantinou).

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includes a variety of statutes regulating land development in out-of-plan areas, either for productive activity or for residential purposes.8 The complexity of existing legislation and its inconsistent implementation by the planning administration are considered to be among the greater impediments to controlling development and to enabling effective enforcement action. In this regard, the main challenge for the future would be the simplification of existing procedures and the codification of the disparate statutes that actually regulate planning process and land development in Greece. IV.

PLANNING INSTITUTIONS

In Greece, urban and regional planning was for a long time the sole responsibility of the State. However, in the 1980s and mainly the 1990s, the structure of government in relation to planning underwent some change, particularly in response to the tendency of ‘regionalization’ prevailing in the European Union during the same period. This was evidenced by the increasing role of regional administrations and local tiers of government as they took on responsibilities from the State. Changes at the allocation of planning powers between different levels of government were followed by the creation of interministerial committees of planning at the state level in order to improve coordination between different policies with planning impact. At the national level, the main institution responsible for urban and regional planning is the Ministry for the Environment, Spatial Planning and Public Works (ΥΠΕΧΩΔΕ, YPECHODE). Created in 1985 through the amalgamation into a single Ministry of the former Ministry for Public Works and the Ministry for Spatial Planning, Housing and the Environment, this Ministry is exclusively responsible for the elaboration, approval, and implementation of urban master plans, statutory town plans, housing plans and projects and environmental protection programs. It is also responsible for the elaboration, monitoring, evaluation and revision of National and Regional Territorial Plans. Two bodies closely related to YPECHODE, which play a significant role in national planning, are the Coordinating Committee of Governmental Policy for Spatial Planning and Sustainable Development and the National Council for Spatial Planning and Sustainable Development. The latter is an advisory body for planning policy, constituted of representatives of the first and second-tier local authorities, representatives of the productive sectors and chambers of Greece as well as NGOs, university professors and scientists, while the former is an interministerial body, chaired by the Minister of YPECHODE, and responsible for the approval of General and Special Territorial Plans. 8.

Out-of-plan areas are the areas that are not covered and regulated by town plans. According to existing legislation, these lands are not necessarily wild, natural or agricultural lands. Development can also take place in extensive parts of these areas under a certain set of rules and conditions that is mainly provided in the Presidential Decree of May 24/31, 1985.

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Other Ministries, responsible for such sectors as industry, tourism, agriculture, transport and energy, also intervene in the formulation and implementation of urban and regional planning. Among them, mention should be made to the Ministry of Culture, responsible for the protection of the cultural environment and national cultural heritage (including monuments and their surrounding area), the Ministry of Agriculture, responsible for the protection and management of forests and woodlands, the Ministry of Development, responsible for the formulation of industrial policy, energy policy, mineral raw materials policy and the promotion of industrial development, and finally the Ministry of Economy and Finance, responsible inter alia for national economic planning, public investment programs and incentives, regional policy as well as the coordination and supervision of the Community Support Frameworks. The 13 Regions9 in which the country is currently divided are entrusted with several planning responsibilities mainly concerning the elaboration, approval, amendment, revision and monitoring and control of different types of urban plans (Arts 4 and 5 of Law 2508/1997, Art. 10 of Law 3044/2002),10 the approval of zones for the transfer of floor-area ratio (Art. 4 of Law 3044/2002), and the approval of departures from general building rules in the case of non-residential buildings (such as buildings used for health care, education and welfare services, as well as industrial plants and public sport facilities). The planning powers delegated to the Regions are exercised by the General Secretaries which head the Regions and are appointed by the government. Apart from the regional administrations, a great number of second-tier (prefectural self-government) and first-tier (municipalities and communes) local authorities intervene in the planning process. According to Article 102 I Const., the local authorities of both tiers are called upon to administer local affairs falling under their territorial responsibility (see Ch. 3, Section IV B 1). However, neither the Constitution nor legislation define the concept of local affairs, with the exception of some responsibilities explicitly stated in the Municipal and Communal Code (e.g., parking management, street cleaning and lighting, refuse collection, construction, maintenance and management of water supply and sewerage networks, creation of municipal sports facilities, etc.).11 Therefore, the concept is disputed in the courts that often adopt interpretations in favor of the State. In the production and approval of statutory plans, the role of local authorities is mostly advisory, while the hard core of their responsibilities is dedicated to the delivery of building permits and other licenses, and the implementation of town plans. Since the 1990s, the local authorities of both tiers – especially the prefectural ones – have been delegated important powers with respect to the initial approval 9. The Regions are consolidated decentralized units of state administration that ensure that state policies can be administered at local level. They actually constitute the sole level of state decentralization. See Ch. 3, Section IV A 2. 10. The provisions of Law 3044/2002 regarding the competences of the Regions to approve or amend urban plans with a regulatory character were however judged as non-constitutional by the Council of State. See below, ftn. 12. 11. Law 3463/2006 on the ratification of the Municipal and Communal Code (Art. 75).

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or amendment and revision of town plans. However, these reforms have raised serious legal objections12 that seem to undermine the prospect of a more ample decentralization process in the field of urban and regional planning. Besides regional and local authorities, a great number of government agencies and public sector organizations intervene in the spatial planning process, especially at the implementation stage. Among them, reference should be made to the Athens Organization and the Thessaloniki Organization, respectively responsible for the implementation and monitoring of the Master Plans of Athens and Thessaloniki (Laws 1515/1985 and 1561/1985). V.

TYPES OF PLANS

Greek planning law includes a wide range of instruments extending from strategic and framework plans at national and regional levels to regulatory town plans and zones at local level. Existing legislation establishes a hierarchical structure between different types of plans with the higher tier being binding on the tiers below it. The organization of the levels of planning largely reflects the spatial scale at which plans operate (national, regional, local) without, however, having a strict correspondence to the existing levels of government. Notwithstanding the fact that plan-making still remains a state responsibility, there is room for consultation with local authorities, as well as for public involvement during the procedure for preparation and adoption of plans. A.

NATIONAL LEVEL

Under Law 2742/1999, national spatial planning comprises the General and Special Territorial Plans.13 The General Territorial Plan (GTP) contains the guidelines for the development, organization and management of national territory. It defines more specifically the main national poles and axes of development, as well as the international gates of the country, the spatial arrangement of infrastructure and especially the transportation networks of national importance and the spatial 12.

See especially SE (full bench) 3661/2005, PkD 4 (2005) 633–644, that, by jointly interpreting Articles 24 II, 43 II and 102 I Const., has recognized urban and regional planning as a state function which blocks the transfer to regional and local authorities of planning powers belonging, under the Constitution, to the central government (i.e., the President of the Republic). In this respect, see also P.M. Efstratiou, ‘The Prerogative of the President of the Republic to ‘Exercise Competences Constituting Mission of the State’ (Article 102 I Const.)’, PkD 4 (2005) 544–551 [in Greek]; G. Giannakourou, ‘The Institutional Structure of Urban Planning in Greece: Reflections based on SE (full bench) 3661/2005’, PkD 2 (2006) 214–219 [in Greek]. 13. The exact translation for those two documents would be, respectively, General and Special Frameworks for Spatial Planning and Sustainable Development (Γενικό και Ειδικά Πλαίσια Χωροταξικού Σχεδιασμού και Αειφόρου Ανάπτυξης, Geniko kai Eidika Plaisia Chorotaxikou Schediasmou kai Aeiforou Anaptyxis).

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organization of the productive sectors of the economy. It gives further the basic guidelines for the metropolitan areas and other important urban agglomerations and their relation to their regions, the structure of the urban system along with the spatial structure and development of the mountainous areas, as well as the rural, coastal and island areas. It provides finally for the management of national resources, the conservation and protection of national natural and cultural heritage and the restructuring and creation of viable administrative and development units in the whole country. The GTP has to take into account all relevant European and international spatial planning policies. The Special Territorial Plans (STPs) specify the guidelines of the GTP with regard mainly to: (a) the spatial structure of certain economic activities of national importance; (b) the spatial structure of networks and technical, social, and administrative services of national interest, as well as the spatial distribution of infrastructure which is related to knowledge and innovation; and (c) special areas of the country, and especially coastal areas and islands, mountainous and lagging zones, areas included in international or European agreements for the protection of the environment (e.g., special conservation areas protected under Directives 79/409 and 92/43),14 and other spatial entities presenting crucial environmental, development and social problems. YPECHODE is responsible for the elaboration of the GTP and STPs, in cooperation with other ministries and public bodies, for their monitoring and evaluation as well as their revision every five years, if necessary. The GTP and STPs are approved by the aforementioned Coordinating Committee of Governmental Policy for Spatial Planning and Sustainable Development, following consultation with the National Council for Spatial Planning and Sustainable Development. The General Territorial Plan must be approved by Parliament as well. B.

REGIONAL LEVEL

At regional level, the main planning instruments under Law 2742/1999 are the Regional Territorial Plans (RTPs).15 RTPs are elaborated for each one of the 13 Regions of the country and provide the necessary guidelines for spatial planning in the regional territories, in accordance with the directions by the GTP and STPs. They are accompanied by regional spatial programs indicating the necessary funding and the appropriate actions and measures for their implementation. RTPs are elaborated by YPECHODE, which is also responsible for their monitoring and evaluation, as well as for their revision, and they are approved by ministerial 14.

Council Directive 79/409 of April 2, 1979 on the conservation of wild birds, OJ L 103/1–18, 1979 and Council Directive 92/43 of May 21, 1992 on the conservation of natural habitats and of wild flaura and fauna, OJ L 206/7–50, 1992, respectively. 15. The exact translation for this kind of plans would be ‘Regional Frameworks for Spatial Planning and Sustainable Development’ (Περιφερειακά Πλαίσια Χωροταξικού Σχεδιασμού και Αειφόρου Ανάπτυξης, Perifereiaka Plaisia Chorotaxikou Schediasmou kai Aeiforou Anaptyxis).

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decisions. Presently, 12 out of the 13 Regions of the country are covered by RTPs, with the exception of the Region of Attica, whose greater part is covered by a special Master Plan of metropolitan character (Master Plan of Athens). Besides RTPs, there are also other planning instruments at regional or subregional level, such as the Master Plans16 of Athens and Thessaloniki (see above, Section IV in f.) and the Master Plans of other major Greek cities (among them Patras, Irakleio, Larissa, Volos, Kavala, etc.) provided by Law 2508/1997 but not yet elaborated or approved. C.

LOCAL LEVEL

At local level, the main planning instruments are the General Urban Plans, the Plans of Spatial and Settlement Organization for Open Cities (known respectively in Greek under the abbreviation of GPS and SHOOAP) and the Town Plans. GPS and SHOOAP are plans of general guidance, setting the basic directions of the future development of a settlement and defining land uses, average floor-area ratio, general standards for green spaces and basic needed infrastructure. ‘Town Plan’ (Σχέδιο Πόλεως, Schedio Poleos) is a generic term that covers a variety of detailed zoning plans drawn on a topographical map. These plans determine street alignments, building lines and land-use designations, and are accompanied by a building ordinance, including minimum plot size and plot dimensions, maximum plots ratios and the floor-area ratio. The Town Plan is a regulatory administrative instrument granting development rights. The Town Plan is followed by the implementation plan, i.e. a plan drawn on a land registration map that adjusts the provisions of the town plan by taking into account the realities of the land properties on the ground. The implementation plan is accompanied by tables of land and money contributions charged to each property against its insertion in the town plan. Land contributions are used for the creation of public spaces (i.e., roads and squares) and for the provision of sites for social-benefit buildings or uses (hospitals, schools, churches, municipal public buildings, etc.). Money contributions are exclusively used for the realization of the basic public urban works. Approval of the implementation plan is granted by the competent local authority (prefect or mayor). The plan is then recorded in the appropriate land registration office. Development in the out-of-plan areas is mainly controlled through the establishment of Zones of Urban Development Control (ZUDC).17 Introduced in 1983 (Art. 29 of Law 1337/1983), these zones aim at controlling land development in the urban fringe and preventing the peripheral areas around towns and cities from further expansion of urban sprawl. They can be equally used to protect sensitive environmental areas (such as nature and landscape protection zones) and high-quality agricultural land and coastal zones. A ZUDC is approved by presidential decree and contains land-use designations and building conditions 16. A literal translation would be ‘Regulatory Plans’(Ρυθμιστικά Σχέδια, Rythmistika Schedia). 17. Zώνες Οικιστικού Ελέγχου, Zones Oikistikou Elenchou (ZOE).

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for the out-of-plan parcels, while, at the same time, it can impose restrictions on the subdivision of private lands. VI.

BUILDING REGULATIONS AND MAIN PERMITS

Planning control in Greece is realized through the building permit. This permit is required for any work of construction inside or outside a settlement. It is a combined system of planning and building control, which regulates building construction and demolition, as well as land-use change. In within-the-plan areas, granting of permit is tested against the provisions of binding town plans and, in addition, against the general building conditions provided in the General Building Regulation (Law 1577/1985, as amended and supplemented by Laws 1772/1988 and 2831/2000). General building conditions deal with plot size, plot ratio, floor-area ratio, volume coefficient, building heights, balconies, overhangs, advertisements and signs and unoccupied spaces. In out-of-plan areas, building activity is regulated by a special set of rules and conditions that vary according to the designation of the building for residential or non-residential use (agricultural, industrial plants, educational buildings, tourist premises, etc.). Finally, special building regulations are provided for traditional settlements, settlements below 2,000 inhabitants, and industrial and tourist estates. Constructions pursued without a building permit or deviating from the conditions attached to an approved permit are illegal. In these cases, the appropriate enforcement authority has the right to suspend construction work, to impose financial penalties or, under certain circumstances, to order demolition of unauthorized development. However, in practice, demolition is rarely realized and thus illegal building activity is implicitly tolerated.18 Besides the building permit, there is a diverse array of other specific permits that relate to building and land-use change. Among them, we should mention the permit required for development on or around monuments and historic buildings (Art. 10 of Law 3028/2002), and the approval of environmental conditions required in cases of public or private projects that may have significant impact on the environment (Arts 3–5 of Law 1650/1986, as amended by Law 3010/2002). Both permits are prerequisites for granting the building permit. Finally, one should refer to the possibility of transferring the floor-area ratio that cannot be realized on a particular plot. According to Law 3044/2002, the transfer is possible in the case of lands reserved by plans for public spaces and in the case of plots covered by buildings that have been assessed as preservable (for the increment of floor-area ratio that cannot be used). The owners of the above plots or lands can sell their floor-area ratio to developers in designated ‘receiving’ 18. Illegal building occurs when construction takes place without a building permit, in violation of the permit, with an illegal permit or when building regulations are violated. Illegal building is widespread and poorly controlled both in the within-the-plan areas and in the out-of-plan areas. The repeated legalizations of unauthorized development that have taken place in the past along with the ineffectiveness of current control and enforcement mechanisms are among the factors perpetuating this phenomenon up to now.

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areas that are thereby allowed to build at an increased density reflecting the value of the transferred rights. Unlike traditional expropriation process, transfer of floor-area ratio is built on market-led mechanisms that enable land acquisition for public purposes on a cost-free basis for the public. Despite the legal problems its implementation has raised in the past,19 the transfer of floor-area ratio has already attracted considerable interest in Greece both from the part of small landowners and from the part of developers. In this respect – and if its application is invested with the necessary legal security – the transfer of floor-area ratio could operate broadly as an alternative land-policy instrument enabling plan implementation and preservation of cultural heritage. BASIC BIBLIOGRAPHY (in English, unless otherwise indicated) A.

BOOKS

D. Christofilopoulos, Urban and Regional Planning-Programming (AthensKomotini, 1990) [in Greek]. D. Christofilopoulos, Cultural Environment, Spatial Planning and Sustainable Development (Athens, 2002) [in Greek]. Commission of the European Communities, The EU Compendium of Spatial Planning Systems and Policies, Regional Development Studies No. 28 (Luxembourg, 1997). Commission of the European Communities, The EU Compendium of Spatial Planning Systems and Policies. Greece, Regional Development Studies No. 28 G (Luxembourg, 2000). P.M. Efstratiou, Code of Basic Planning Legislation (Athens, 2001) [in Greek]. K. Horomidis, Alignment Law and Urban Planning Law (Thessaloniki, 2002) [in Greek]. D. Melissas, Fundamental Issues of Spatial Planning Law (Athens- Komotini, 2003) [in Greek]. P. Newman and A. Thornley, Urban Planning in Europe. International Competition, National Systems and Planning Projects (London-New York, 1996). V. Skouris, Regional and Urban Planning Law (2nd edn, Athens-Thessaloniki, 1991) [in Greek]. A. Tzika-Hatzopoulou, Urban Planning Law (Athens, 2003) [in Greek].

19. The transfer of the floor-area ratio was first introduced into Greek planning legislation with Law 880/1979. However, its implementation raised serious problems of constitutionality that not only led to successive amendments of the relevant provisions, but further rendered this novel instrument questionable and controversial.

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ARTICLES AND OTHER PUBLICATIONS

E. Beriatos, ‘Environmental Policy and Spatial Planning in Greece. Institutional Aspects’, Water, Air and Soil Pollution: Focus 4 (2005) 433–444. P.M. Efstratiou, ‘The Prerogative of the President of the Republic to ‘Exercise Competences Constituting Mission of the State’ (Article 102 I Const.)’, PkD 4 (2005) 544–551 [in Greek]. G. Giannakourou, ‘The Institutional Framework of City Planning in Greece’ in The Development of Greek Cities: Interdisciplinary Approaches in Urban Analysis and Policy, D. Economou and G. Petrakos (eds) (Athens-Volos, 1999) [in Greek]. G. Giannakourou, ‘Transforming Spatial Planning Policies in Mediterranean Countries: Europeanization and Domestic Change’, European Planning Studies 13 (2005) 319–331. G. Giannakourou, ‘The Institutional Structure of Urban Planning in Greece: Reflections based on SE (full bench) 3661/2005’, PkD 2 (2006) 214–219 [in Greek]. International Society of City and Regional Planners (ISOCARP), Special Bulletin: Planning in Greece (Athens, 2002). E. Koutoupa-Rengakos ‘L’évolution du droit de l’urbanisme en Grèce de 1999 à 2004’ in Droit de l’aménagement, de l’urbanisme et de l’habitat (Paris, 2004) 717–727 [in French]. A.Ph. Lagopoulos, ‘Greece’ in Planning in Europe, R.H. Williams (ed.) (London, 1984). L. Wassenhoven, ‘Greece’ in Planning and Urban Growth in Southern Europe, M. Wynn (ed.) (London, 1984).

Chapter 9

Family Law Anastasia Grammaticaki-Alexiou*

I.

INTRODUCTION

Family law is contained in Book IV of the Civil Code. The original provisions of this book were quite conservative even for 1946, when they were first adopted, modeled on the idea of a patriarchal family. The majority of family law concepts and institutions of the Code were derived from Byzantine-Roman law, which was applied to family relations of Greeks at least since Byzantine times. Later, when Greece achieved its independence following Ottoman rule, the same system, as adopted in the Hexabiblos of Harmenopoulos, was officially introduced by the Royal Decree of February 23/March 7, 1835 and became the basic legislation in the private-law sphere of the new country. Byzantine-Roman law along with the Ionian Civil Code, the Civil Code of the island of Samos and the Civil Code of the island of Crete remained in force until the introduction of the Civil Code. Until quite recently, the law prescribed different roles for each spouse and considered the husband as the head and main supporter of the family. But gradually, traditional ideas changed and the role of the wife became important as well. The current Constitution explicitly establishes, for the first time in Greek legal history, the principle of equality of the sexes. Article 4 II proclaims that ‘Greek

*

Professor of Law, University of Thessaloniki.

Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 179–199. © 2008, Kluwer Law International BV, The Netherlands.

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men and women have equal rights and obligations.’ However, under Article 116 I, existing inconsistent provisions remained in force until their repeal by law by December 31, 1982. This constitutional mandate made the revision of family law necessary. The process took more than six years and involved a great deal of controversy in the press, bar associations, political parties, the Church and women’s organizations. The gigantic effort resulted in Law 1329/1983 on the application of the constitutional principle of equality of men and women, which brought a partial modernization of family law. No other revision of the Civil Code has been so extensive. The transformation reflects the impact of the changed social context on the law and it is hoped that it will satisfy the anticipated developments of the future. It is worth mentioning that these statutes are drafted in the demotic spoken language and not in the original formalistic language of the Civil Code, thus taking the first step towards the linguistic modernization of all codes. Of the 364 Articles in the Book, 264 have been amended or repealed. Whole institutions, such as dowry, paternal authority (replaced by parental care) and emancipation of minors have been abolished. Most other parts have been revised. New developments in biotechnology and changing social and economic attitudes have recently caused several other very important changes in the field of family law. A whole new chapter concerning medically-assisted reproduction has been added, and several provisions on parentage have been revised accordingly. New adoption rules have been introduced, aiming to serve the best interests of the child and the concept of judicial assistance (δικαστική συμπαράσταση, dikastiki symparastasi; see Ch. 5, Section V B and also below, Section VII D) has replaced the concepts of guardianship of interdicted persons and judicial supervision, in an effort to respect the personality of the person concerned. Family law presents, as it is, certain basic characteristics, which clearly show its constant progress, balanced between tradition and change. The mandatory character of most rules is an indication of the interest of society, represented by the State, in marriage and the family. Maybe that is the reason why the law has not regulated the so-called ‘free unions’ so far. The only mention of the concept in the Civil Code is made in Article 1444 II as regards the right to alimony after divorce (see below, Section III C), which ceases to exist if the former spouse chooses to live with a person in free union. However, the present tendency of the doctrine is to apply to free unions the provisions on marriage in an analogous manner provided such provisions do not conflict with the freedom the interested parties desired to maintain.1 At the same time, family law is liberal, marked by considerable individualism. Consistent with the contemporary social trends is a tendency of radical renewal. This tendency is hard to reconcile with another characteristic, which has always dominated family law, i.e. the strong influence of the Church, dating 1.

For problems related to free unions see SSC 44/1991, DD 4 (1992) 267–268; CA (Athens) 2171/2002, Chr.ID 3 (2003) 420–422; AP 564/2003, NoB 52 (2004) 24–27; (full bench) 14/2004, NoB 53 (2005) 52–54; 434/2005, Hell.Dni 46 (2005) 1060–1062.

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back to Byzantine times. Marriage impediments, the compulsory religious form of marriage and certain grounds for divorce are some of the most striking examples of the influence exercised in the past by the Greek Orthodox Church. Today this influence has subsided considerably but it still exists. II.

MARRIAGE (γάμος, gamos)

A.

ENGAGEMENT TO MARRY (μνηστεία, mnisteia; Arts 1346–1349 CC)

The term ‘engagement to marry’ means both the contract between a man and a woman by which they promise to marry each other, and the legal relationship existing between the persons engaged. It is remarkable that the provisions of the Civil Code concerning this issue have not undergone any change, notwithstanding that the institution has lost much of its significance in our days. The conditions of an engagement to marry are: (a) capacity to marry, although minors may become engaged as well; (b) conformity to public policy and morality; and (c) consent of the parties. No formalities are required for an engagement. No legal obligation to marry is created thereby and no legal action may be brought to compel this effect. Breach of the promise to marry has, however, certain financial consequences for the party who causes it without important reason: this party owes damages to the other party or to the other party’s parents or to any other person who has suffered a financial loss as a result of expenditures incurred in expectation of the prospective marriage. As far as the restitution of gifts exchanged between the parties is concerned, each one may request their return according to the rules of unjust enrichment (see Ch. 6, Section III). All claims must be made within the two years following the end of the year during which the breach of the engagement took place. B.

ESSENTIAL REQUISITES OF MARRIAGE, REQUIREMENTS, AND IMPEDIMENTS (Arts 1350–1360 CC)

The difference of sex is a basic requirement of a valid marriage, which clearly results from the whole concept of marriage. It does not follow, though, that the ability to have sexual intercourse is also an essential requisite. Its lack may only eventually become a reason for divorce. The minimum age is 18 years. Thus, legal maturity is another requirement. If a minor wants to marry, he must apply to the court for an exemption. Exemption will be granted if the marriage, due to extraordinary circumstances, appears to be in the interest of the minor according to the facts presented by the parties and their parents who exercise parental care. Persons of unsound mind and those who have been interdicted by the court cannot marry validly. Those placed under judicial assistance may marry only if the judicial assistant gives his consent. Other impediments to marriage are consanguinity (i.e. marriage between persons related

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to each other in the direct ascending or descending line or between brother and sister), collateral relationship up to the fourth degree, and adoption. C.

THE CELEBRATION OF MARRIAGE (Arts 1367–1371 CC)

An investigation as to whether any impediments exist precedes the celebration of marriage. Also a publication of a notice, which affords an opportunity of discovering existing impediments, is required. If no opposition to the marriage occurs or such opposition has been rejected and the parties have submitted the documents required, the mayor or the chairman of the parish of their domicile issues a marriage license to each one. If the marriage is going to be solemnized in church, then the church may issue a marriage license as well, after checking whether the civil and the religious requirements have been met. The marriage ceremony may be either a church or a civil ceremony, which implies that the couple may choose the kind of solemnization they prefer. If both parties are Greek Orthodox – which is usually the case – and they choose the religious ceremony, then they are entitled to be married by a priest of the parish where at least one of them is registered, according to the rules of the Greek Orthodox Church. If they belong to another denomination, they may be married according to the rules of that denomination. If they belong to a different denomination or faith, then the ceremony must be performed twice, according to the rules of each denomination or faith. Evidently this is a complicated procedure that may create problems; a civil ceremony is the only practical way to avoid them. Furthermore, special legislation retroactively validates civil marriages celebrated abroad under local law (see Ch. 17, Section I D 1 (a)). The civil wedding, introduced by Law 1250/1982, is performed by the mayor in the town hall in the presence of two witnesses, in public ceremony. Marriage by proxy is not allowed. The priest or the mayor who has celebrated the marriage issues a certificate, which is recorded in the registry. This recordation serves as proof of the celebration of marriage. Recent figures show that Greeks still prefer the religious ceremony. This is probably due to the long tradition, the religious influence or the apparently more formal character of the religious ceremony. Civil weddings are more frequent in big cities than in the country. D.

NULLITY OF MARRIAGE (Arts 1372–1384 CC)

Failure to comply with the provisions on form results in non-existence or total nullity of marriage, not merely voidability thereof. A marriage contracted while an impediment existed is void and may be annulled by a court judgment pursuant to an action instituted by a spouse, by any other interested person or by the public prosecutor. If the marriage was celebrated without the free consent of a spouse because of threats or if there had been a mistake as to the person, it is voidable and

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may be annulled upon application by the spouse who was mistaken as to the person of the other spouse or was threatened. In the latter two cases, the application for annulment is rejected if the applicant, after recovering his liberty or discovering the mistake, freely and without constraint recognized the marriage. If one of the parties of a void marriage acted in good faith, he has a claim for alimony against the other party who has known the nullity, according to the provisions regulating alimony in divorce (see below, Section III C ). Children born in a marriage that has been subsequently annulled are nevertheless considered as born in marriage. E.

PERSONAL EFFECTS OF MARRIAGE (Arts 1386–1390, 1396 CC)

Equality governs the relations between spouses. This leads to the application of the principles of mutual assistance, companionship and free allocation of the roles of husband and wife within the family and to the independence of the spouses in matters that do not affect the marriage directly. For example, marriage does not affect the domicile, the name or the nationality of either spouse. The husband and wife are required to live together in the matrimonial home. Each spouse has the duty to contribute personally and financially to the family needs in proportion to his means.2 The statute of limitations in actions between spouses is suspended so long as the marriage exists. If one of the spouses does not fulfill his obligation to live together with the other spouse, the latter may in theory bring an action claiming restitution of cohabitation, which, however, is not specifically enforceable. Similar to the approach taken by the German, Austrian, French, Scandinavian and other Continental legal systems, decisions concerning family life are taken by mutual consent. If such consent is lacking, the court may resolve the disagreement. If a natural (i.e., absence or illness) or legal (i.e., interdiction) reason makes the consent of one of the spouses impossible, the other one decides alone. In cases of emergency, a decision may be made by only one of the spouses, provided that it is for the benefit of the marriage. Finally, the law also provides that decisions concerning family life must not violate the sphere of the personality of each spouse and must not obstruct his professional career or activities in general. The family name of each spouse does not change. This is quite a liberal solution, which finds no exact counterpart in other Continental legal systems. However, each spouse may use the name of the other in his social life so long as the latter does not object. For marriages in existence in 1983, when this provision came into force, a transient rule provided that within one year women who had acquired their husband’s name could have made a declaration to the registry (or to the consular 2. A spouse is entitled to reparations from the tortfeasor covering the damage caused by loss of the services offered to the household by the wife killed in a traffic accident: CA (Athens) 7212/1984, NoB 32 (1984) 1561–1562; AP 461/1991, Hell.Dni 33 (1992) 79–80; (full bench) 39/1997, NoB 46 (1998) 625–626; CA (Dodecanese) 5/2002 , August 22, 2006.

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officials, if the spouses lived abroad) to resume their maiden name. However, since many women did not take advantage of that possibility for one reason or another, Article 12 III of Law 1649/1986 provides that women who have acquired their husband’s family name may resume their maiden name at any time. F.

MATRIMONIAL PROPERTY (Arts 1397–1416 CC)

The institution of dowry (προίκα, proika) has deep roots in Greek society. It covered all property, movable or immovable, granted to the wife by her parents or relatives and placed either under the ownership or the administration and usufruct of the husband during marriage. It was connected to the principle that the man bears the burdens of matrimony, and has a history of almost 3,000 years. It was a practice humiliating to women, often creating major financial problems for the woman’s family, and also degrading to the extent that it allowed women to sue parents who refused to provide a dowry when they were financially able to do so. The 1983 amendment of the Civil Code abolished this institution as inconsistent with the principle of equality of the sexes. Dowries constituted before that date are to be ceded to the wives. It is, however, doubtful whether the abolition by the law can extinguish the actual practice. Although younger generations appear less inclined to follow the old ways, sociological data show that gifts by the bride’s parents to the family at marriage continue to be frequent. The matrimonial property regime is governed by the principle of the autonomy of the parties. Thus, spouses are free to decide about the kind of property relation they prefer. If they do not make use of this freedom, then each one of them owns and manages his property separately during the marriage. Naturally, it is possible for them to acquire common property. Each spouse is responsible to his creditors for his debts. But so far as movable property is concerned, the law establishes three rebuttable presumptions: (a) for the creditors’ benefit, movables being in the possession of either one or both spouses are presumed to belong to the spouse who is the debtor; (b) in disputes arising between the spouses, movables possessed by each spouse or both are presumed to belong to both of them equally; and (c) in disputes between spouses and creditors or the spouses only, movables intended for the personal use of each spouse are presumed to belong to the spouse who uses them. There is one more presumption concerning both movable and immovable property, according to which, in case of bankruptcy of one of the spouses, any property acquired by the other spouse within the two years prior to the cessation of payments belongs to the bankrupt spouse for his creditors’ sake. Very often one of the spouses, usually the husband, manages the property of the other spouse as well. If this happens arbitrarily, he is subject to the general provisions on the management of the affairs of another (negotiorum gestio; διοίκηση αλλοτρίων, dioikisi allotrion; see Ch. 6, Section II I in f.). Otherwise, if the management has been willingly entrusted to the spouse, the provisions on mandate (εντολή, entoli; see Ch. 6, Section II I ) are applicable.

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The spouses may modify the legal regime by a matrimonial agreement before or during marriage, adopting a community of property. Such agreement is a contract made by notarial act recorded in the public registry. The spouses are free to stipulate what will be common and what will be the separate property of each one of them. If they do not so stipulate, the law provides that community property does not comprise property acquired by each spouse through inheritance or donation to him individually, property acquired by each spouse prior to the marriage, property of each spouse intended strictly for his personal use or profession, nontransferable claims, rights over his intellectual property and acquisitions of each spouse during marriage realized through the sale of his private property. In forming their matrimonial agreement, the parties must take into consideration the mandatory rules concerning matrimonial property. The details of the system of community property are governed by the principle of equality of rights and duties. The spouses may at any time modify the matrimonial agreement by entering into a new one or may terminate it altogether. The form of a notarial act is required in both instances. Community of property is also terminated if the marriage is dissolved or annulled, if one of the spouses has disappeared or has gone bankrupt or if the court renders a decision to that effect after petition of a spouse, because the parties have been living apart for at least one year or because the condition of the private property of the other spouse or management of the community property is such that the interest of the petitioner is in danger. Under the regime governing separation of property, when the marriage is dissolved or annulled, each spouse may claim distribution of profits and gains deriving from the property of the other spouse to which the former has contributed. Proof of the size of contributions is usually very difficult.3 For this reason, the law adopts a rebuttable presumption that this contribution is equal to one-third of the profits and gains. This presumption also applies to property acquired before the enactment of Law 1329/1983, so long as the marriage had not been dissolved or declared null by then (Art. 12 I of Law 1649/1986). The distribution request belongs to the spouses alone, and the prescription period is two years after dissolution or annulment of the marriage. G.

INTERRUPTION OF MARITAL LIFE (Arts 1391–1395 CC)

This involves a situation where a physical and psychological distance exists between the spouses who no longer wish to share their lives. In most cases, it is the first step towards divorce and, although it is not equivalent to the separation from bed and board, it bears many similarities thereto. Interruption may be the result either of an agreement between the spouses, valid in only a few cases, or of a unilateral action by one of them. It may be either justified or unjustified.

3. AP 1418/2004, Hell.Dni 46 (2005) 752–754; 602/2005 and 1848/2005, , August 22, 2006.

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The basic problem relating to the interruption of marital life is the support of the financially weaker spouse. The latter is entitled to support if (a) he provoked the interruption for good cause, or (b) the other spouse provoked the interruption without good cause, or even for good cause when his spouse is not at fault. The amount of support depends on the circumstances.4 So far as the matrimonial home is concerned, each spouse may request that he be given the use of the family house, irrespective of rights of ownership, possession or occupancy, if reasons of equity, the interest of children or the special circumstances of each party make it necessary.5 Movables within the house, which belong to one of the spouses may be taken away by him, unless the circumstances indicate that the use of some of them is absolutely necessary for the other spouse. The parties may agree on the right of use of movables belonging to both spouses. If no such agreement is reached, it is for the court to decide. III.

DIVORCE (διαζύγιο, diazygio)

A.

GROUNDS (Arts 1438–1440 CC)

A divorce is granted on one of the following grounds: (a) irretrievable breakdown of the bond of matrimony; or (b) absentia (see Ch. 5, Section II C ). Irretrievable breakdown (ισχυρός κλονισμός, ischyros klonismos) comprises all divorce grounds existing in the law before its amendment in 1983. It does not necessarily imply fault on the part of either spouse.6 The previous grounds, i.e. bigamy, adultery, desertion, and attempt on the life of the spouse, have been transformed to rebuttable presumptions that the marriage has suffered irretrievable breakdown. Another presumption is irrefutable: separation of the spouses for four consecutive years.7 The approach adopted by Law 1329/1983 is partly similar to that of French law and partly similar to that of German law. Greek family law does not recognize separation from bed and board. Thus, the terms ‘divorce’ and ‘dissolution of marriage’ have the same meaning. It should also be mentioned that under exceptional circumstances a divorce petition may be rejected as constituting an abuse of right.8

4. AP 561/1987, EEN 55 (1988) 180–181; 648/1987, ibid. 208; 897/1988, EEN 56 (1989) 456–457; CA (Piraeus) 544/2002, Peir.N 24 (2002) 323–338; CA (Thessaloniki) 792/2005, , August 22, 2006. 5. The benefit of occupancy of the matrimonial home will be taken into consideration in the calculation of the support: AP 792/2000, , 22 August 2006; CA (Patras) 470/2004, , August 22, 2006; AP 1922/2005, Hell.Dni 46 (2005) 817–819. 6. AP 1301/2005, , August 22, 2006. 7. Living under the same roof does not preclude separation: AP 1667/1987, Hell.Dni 29 (1988) 904–905; CA (Thessaloniki) 2574/1999, , August 22, 2006. 8. AP 326/1986, EEN 53 (1986) 809–810; 1325/1987, NoB 36 (1988) 1449–1452; CA (Athens) 9042/1992, Arch.N 44 (1993) 612–613.

Family Law B.

187 PROCEDURE (Arts 1438, 1441 CC)

Depending on the procedure followed, a divorce petition may be opposed or unopposed. In the latter case (συναινετικό διαζύγιο, synainetiko diazygio), the spouses in reality agree to divorce. This kind of divorce is in essence a divorce ‘by consensus’. In legal countenance, however, consent by the spouses provides only strong proof of the breakdown of the matrimonial bond, which is the ‘ground’ for such a divorce. The procedural requirements for an unopposed divorce are: (a) duration of marriage for at least one year before presenting the divorce petition; and (b) consent in person by the spouses (or their special plenipotentiaries) twice before the court. The second consenting statement must be made at least six months after the first one. The reason for this delay is the need for a reconsideration period, so that overhasty divorces may be avoided. In addition, consent may be revoked at any time before the divorce judgment becomes irrevocable.9 If minor children exist, the spouses must submit to the court an agreement in writing by which they settle the matters of their children’s custody and visitation. Divorce is granted by court judgment. If the form of the marriage dissolved has been religious, the divorce is completed by the spiritual dissolution pronounced by the bishop. C.

EFFECTS OF DIVORCE (Arts 1442–1446, 1513 CC)

Divorce puts an end to the obligation of spouses for cohabitation and for making common decisions about family life. Dowries, which remained valid under the 1983 amendment, are returned to the woman. If the parties had chosen a community-of-property system, such system is dissolved. If, under the system of separation of property, one spouse had been managing the other spouse’s property, he is required to make an accounting and to return the income he had collected from that property. Additionally, each party may claim his participation to profits and gains made by the other party during marriage (see above, Section II F). As to the minor children, both parents retain their parental care and custody in common. Parental care may be entrusted to one parent, or to both, if they agree and are able to determine the minor’s place of residence. In case of disagreement, the court may divide the exercise of parental care and custody between the parents or entrust it to a third person. In formulating its decision, the court may take into consideration the ties of the child with each parent and with brothers and sisters as well as existing agreements of the parents on the matter. The criteria of gender or fault no longer affect maintenance obligations following divorce. Both parties have the same rights and obligations and are normally expected to support themselves. Nevertheless, if one of the spouses is destitute while the other has sufficient means, the law grants the destitute party a right to alimony for as long as one of the following reasons persists: (a) his health or age do not allow him to acquire proper employment in order to support himself; (b) he cannot work 9. MP (Thessaloniki) 314/1989, Harm. 43 (1989) 648–650; CA (Larissa) 565/2000, Hell.Dni 43 (2002) 791–793, CA (Thessaloniki) 3142/2000, Hell.Dni 42 (2001) 769–770.

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because he has the care of the dependent children; (c) he cannot find an appropriate steady employment or needs professional training (in this case the right to alimony cannot last for more than three years after the divorce); or (d) alimony is necessary for equitable reasons. This last reason, expressed so generally, is intended to cover situations that do not fall exclusively within the other three reasons.10 In determining the amount of alimony, the court must take into consideration the needs of the claimant spouse as they appear after the divorce. Payment is made on a monthly basis but the spouses may agree otherwise, for example on a lump sum. The court may refuse or limit alimony if the duration of the marriage was very short,11 if the claimant was at fault with respect to the divorce or if he willingly caused his destitution. Alimony terminates if the spouse to whom it has been awarded remarries, cohabits with someone else in free union (see above, Section I) or dies. Nevertheless, alimony rights accrued at the time of the beneficiary’s death may be inherited.12 IV.

PARENT AND CHILD

A.

MEDICALLY-ASSISTED REPRODUCTION (Arts 1455–1460 CC)

Originally, artificial reproduction was mentioned in only one provision of the Civil Code and parentage was based on descent. Law 3089/2002 regulating medicallyassisted reproduction adapted family law to biomedical developments, introduced new rules concerning the various methods of artificial reproduction and added or amended basic provisions on parentage. Medically-assisted reproduction is allowed only as a means to combat either the inability to have children in the natural way or the transmission of a serious illness to the child. Such reproduction is permissible during the age of natural ability for reproduction. Cloning is prohibited. Persons wishing to have a child must consent in writing. Unmarried women and – if applicable – the men they live with in free union must give consent by notarial act. Revocation of consent, made also by notarial act, may take place before the transfer of the sperm or the fertilized egg to the woman’s womb. Posthumous fertilization is allowed by the court if: (a) the husband or the man with whom the woman was living suffered from a disease likely to cause sterility or there was a danger of death; and (b) he had consented to such posthumous fertilization. The latter can take place no sooner than six months and no later than two years after the man’s death. The law provides for the fate of sperm and fertilized eggs, which are not used. Confidentiality is important and, therefore, the identity of the persons who have 10. CA (Athens) 7046/1984, NoB 32 (1984) 1559–1561; 11488/1988, NoB 37 (1989) 755–758; CA (Thessaloniki) 79/1989, Harm. 43 (1989) 134–136; CA (Athens) 4204/1998, Hell.Dni 39 (1998) 1355. 11. CA (Thessaloniki) 2464/1989, Harm. 43 (1989) 867–868. 12. CA (Athens) 8716/2003, , August 22, 2006.

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offered genetic material is not disclosed to the persons wishing to have a child. Medical records of the donors are kept in confidential files without indication of identity and are available to the child only for health purposes. Likewise, the identity of the child or of the parents is not disclosed to the donors. Surrogate motherhood is allowed, with the prior permission of the court,13 under certain conditions: (a) the woman who wants the child must be unable to gestate; (b) the surrogate mother must be in good health, and (c) the persons wishing to have the child must enter an agreement with the surrogate mother and her spouse (if she is married). B.

KINSHIP AND FILIATION (συγγένεια, syngeneia; καταγωγή, katagogi; Arts 1461–1474 CC)

The term ‘kinship’ basically denotes the blood ties between ascendants and descendants (e.g., parents and children) or between persons who have a common ascendant (e.g., brothers and sisters). Filiation used to be based on such blood ties. Law 3089/2002 has changed the concept of filiation that now connotes not only the biological, but also the sentimental and social relationship of a person to a child without the existence of biological links. Thus the relationship of a child to the mother and her relatives is established either by birth or, in the case of surrogate motherhood, by agreement. In the latter case the woman wishing to have a child, who has obtained the permission of the court to ‘borrow’ a womb, is presumed to be the mother of that child. The presumption is rebuttable. The husband of the mother is presumed to be the father of all children born during marriage, irrespective of the method of conception. A child born less than 300 days after the dissolution of marriage is presumed to have been conceived during that marriage. If a child is born subsequently, that child is presumed to have been born out of wedlock. However, the child may be retrospectively considered as born in marriage if paternity is proved and established by court order. If the mother remarries before lapse of 300 days since the dissolution of her previous marriage, the second husband is presumed to be the father of the child unless there is proof that the first husband is the father. Upon condition of prior court permission, children born by posthumous artificial reproduction are considered as born in marriage. The husband (or his parents, in case he has died) may file a suit for disavowal of paternity (προσβολή της πατρότητας, prosvoli tis patrotitas). It may also be filed by the mother (quite often the case nowadays), the child,14 or, in case the mother is separated from her husband, the man with whom she had a permanent relationship, including sexual relations, during the time of conception. It must be proved that the mother of the child and the presumed father did not have sexual 13. MP (Thessaloniki) 2735/2003 Harm. 58 (2004) 225–228; 1320/2004, ibid. 374–375. 14. A special guardian appointed by the court represents the child. AP 1477/1988, Hell.Dni 31 (1990) 106; 1620/2000, Hell.Dni 42 (2001) 728–730.

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intercourse during the time that the child was conceived or that, although there was intercourse, the mother could not have conceived from him. The court may order production of all relevant evidence, including certain scientific methods of proving (or disproving) paternity. If a party to the action refuses to undergo the appropriate medical tests for no special health reasons, the court will presume that the allegations of the other party have been proved.15 Exercise of the right of disavowal is subject to certain time limits. The action for disavowal is impossible if the child dies or if the husband had previously recognized the child as his own. No formalities are required for such recognition. Disavowal of a child born by artificial insemination to which the husband of the mother consented is not allowed. C.

CHILDREN BORN OUT OF WEDLOCK (Arts 1475–1484 CC)

Social developments and the international legal order dictated the amendment of the original rules concerning illegitimate children. The current Constitution also pointed in that direction by adopting provisions on the respect and protection of the value of a human being, on equality and on the protection of childhood (Arts 2, 4, 21). The basic characteristic of the new provisions of family law is the abolition of any discrimination against illegitimate children and their complete assimilation with children born in marriage. The Civil Code no longer uses the term ‘illegitimate’ for a child born out of wedlock, although it has not replaced the term with one that would be really different and accurate. Such child has equal rights with a child born in marriage.16 Beside the Civil Code, protection of children born out of wedlock is also regulated by the European Convention of 1975 dealing with the legal status of children born out of wedlock (ratified by Law 1702/1987, GG A 86), whose provisions supersede those of the Civil Code. Paternity for children born out of wedlock can be established either by voluntary recognition (εκούσια αναγνώριση, ekousia anagnorisi) or by a court decision. Recognition may be effected by the father before or after the child’s birth or, if he is deceased, by his parents through testament or a notarial declaration, and is irrevocable. In all cases, consent of the child’s mother is a necessary prerequisite. The notarial consent of the man to medically-assisted reproduction equals to voluntary recognition and cannot be contested.17 Recognition may be contested (προσβολή της αναγνώρισης, prosvoli tis anagnorisis) on the ground that the recognizing person is not the real father, by the child (whose right is independent from that of the mother’s) or his descendants, each of the mother’s parents if she is deceased, declared absent or incapable at the time of recognition or, under special circumstances, the parents of the child’s 15. AP (full bench) 32/1990, NoB 39 (1991) 228–230; AP 3/2005, Hell.Dni 46 (2005) 820–822. 16. CA (Thessaloniki) 25/1987, Harm. 42 (1988) 435–437; CA (Athens) 2921/1993, Hell.Dni 35 (1994) 451. 17. AP (full bench) 14/2004, above, ftn. 1.

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father. The time limit for the contestation is three months after the contesting party learned of the recognition or, in any case, two years therefrom. If no recognition has taken place, affiliation proceedings (αγωγή αναγνώρισης της πατρότητας, agogi anagnorisis tis patrotitas) may be initiated by the mother18 (or her legal representative with the permission of the court), by the child or his representative or, where the mother refuses to consent, by the natural father himself or by his parents. Such proceedings are not available to the sperm donor in artificial reproduction, in the case that his identity is disclosed. The basic requirement for success of the action is the existence of persuasive evidence of paternity19. The law establishes a rebuttable presumption as well, according to which paternity is presumed if it is proved that the mother had sexual intercourse with the man considered as the father during the period that the child was conceived. The prescription for such an action varies.20 The recognized child enjoys all rights of a child born in marriage, unless the law provides otherwise. Still the best way of ‘legitimating’ a child born out of wedlock is the subsequent marriage of his parents, accompanied by voluntary recognition or a court decision to that effect. Recognition may take place before or after the marriage. V.

ADOPTION (υιοθεσία, yiothesia)

A.

THE LEGAL SITUATION

Prior to Law 2447/1996 that revised the relevant rules, adoption was regulated by Articles 1568–1588 CC, Law Decree 610/1970 and the European Convention on the adoption of children, ratified by Law 1049/1980 (GG A 114). Law 2447/1996 codified all provisions on adoption in a unified set of rules included in Articles 1542–1588 CC. B.

CONDITIONS (Arts 1542–1559 CC)

Adoption must promote the welfare of the adopted child. Only the adoption of minors is permitted. By way of exception, adoption of adults is allowed only when the person to be adopted is a close relative of the adopter.

18. CA (Athens) 2171/2002, Chr.ID 3 (2003) 420–422; AP 564/2003, NoB 52 (2004) 24–26; (full bench) 14/2004, see above, ftn. 1. 19. CA (Athens) 7779/1987, Arch.N 38 (1987) 763–765; AP (full bench) 14/2004, see above, ftn. 1; 1813/2005, , August 22, 2006. 20. For example, for the child it is one year after his coming of age unless the action was not possible due to force majeure: CA (Athens) 5125/1985, D 17 (1986) 243–244. See also AP 1546/2000, Hell.Dni 42 (2001) 1342–1343; 809/2004, , August 22, 2006.

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The prospective adoptive parent must enjoy legal capacity and must have attained at least the age of 30 years and be no more than 60 years old. He must be at least 18 but no more than 50 years older than the minor.21 The court may allow adoption by parents younger than 30 years for important reasons, e.g., if they have no hope of having children of their own, or if one spouse wishes to adopt the child of the other spouse. In all instances, there must be an age difference of at least 15 years between the adopter and the child. If a spouse wishes to adopt the child of the other spouse, the court may allow adoption if the age difference is less than 18 years but no less than 15. Adoption of a child by more than one person is prohibited unless they are spouses. The competent court on the application of the adopter issues a decision on adoption. Consent of the child’s parents or guardian is required but it is ineffective if given less than three months after the child’s birth.22 Minors aged over 12 years, who are not in a psychological or mental state of mind that affects their will adversely, must also consent to the adoption. Depending on the degree of the child’s maturity, even the opinion of younger children must be considered by the court. Married persons cannot adopt without the consent of their spouses. If the adopter has other children, their views must be heard. The same person may adopt more than one child. Since the basic consideration of the legislator is the promotion of the welfare of the child, a relevant investigation and report by the social service or other organization of the State must precede the court decision on adoption. The court pronounces the decision on adoption if it finds that the adoption serves the interests of the adopted child. Adoption of minors is secret. However the adopted child may, after attaining age, obtain information on the identity of his natural parents.23 C.

EFFECTS (Arts 1560–1578 CC)

The adopted person is treated by the law as a child of the adoptive parent(s), having all rights and duties of a child born in marriage. Ties with his natural family are broken (with the exception of marriage impediments of consanguinity and the relationship of the child with the natural parent who happens to be the spouse of the adopter). The adopted child receives the last name of the adoptive parent but may add to that the last name of his natural family after he attains legal age. The court may allow the adopter to add another first name to the first name of the child, with the latter’s consent if he is over 12 years old. Adoption is terminated by a court decision for very serious reasons. If such reasons disappear the adoption may be re-established, again by court order.

21. PP (Athens) 520/2005, NoB 54 (2006) 249–253. 22. PP (Athens) 447/2005, , July 19, 2006. 23. MP (Rhodos) 704/2004, , July 19, 2006.

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193 ADOPTION OF ADULTS (Arts 1579–1588 CC)

Adoption of an adult is possible only if he is the adopter’s relative of fourth class. The relevant court decision is issued upon application of both the adopter and the adoptive adult. The adopter must have attained the age of 40 years and be older than the adopted person by at least 18 years. Married persons cannot be adopted without the consent of their spouse. As a result of the adoption the law treats the adopted person and his descendants as a common child and common descendants of the adopters respectively, but his relationship with his natural family is maintained. On the other hand, there is no relationship between the adopted person and the adopter’s relatives. The adopted person receives the family name of the adoptive parent to which he may add his previous name. Adoption may be terminated by court decision, if the adopted person has committed an act justifying disinherison (see Ch. 10, Section VI) or demonstrates ingratitude towards his adoptive parents. VI.

LEGAL EFFECTS OF FILIATION

A.

NAME, DOMICILE, AND NATIONALITY OF A CHILD (Arts 1505–1506 CC)

Parentage, either natural or created by medically-assisted reproduction or adoption, entails certain continuous effects mainly concerning the status of the person and his rights and obligations towards his family. A common statement of the future spouses before marriage determines the child’s family name. It may be the family name of either spouse (if a parent has more than one family name, only one will be used) or a combination of both, and it must be the same for all children born in the same marriage. In the absence of such statement, the child receives the father’s family name. The adopted child receives the family name of the adoptive parent. If both spouses adopt the child, the rules on the family name of children born in marriage apply as well. Children born out of wedlock receive the mother’s family name. The mother’s husband may give his family name to the child if both mother and child consent. A child legally recognized by his natural father or his parents if he is a minor, or his guardian, may add the father’s family name to that of his own unless the child’s parents, by common decision, give to the child the family name of either one of them or a combination of both. The parents in the framework of parental care select the first name of the child.24 A minor’s domicile is that of his parents (or of the parent who exercises parental care). If the parents live separately, the minor’s domicile is that of the parent with whom he lives. The domicile of minors placed under guardianship 24.

In case of disagreement of the parents, the court will decide; AP 417/2005, Chr.ID 5 (2005) 719–720.

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is that of the guardian. The child of a Greek citizen (irrespective of sex) acquires Greek nationality by birth (see below, Chapter 18 I B). A child born in Greece that does not acquire a foreign nationality by birth or is of unknown nationality also acquires the Greek nationality. B.

OBLIGATION FOR MUTUAL ASSISTANCE AND AFFECTION (Arts 1507–1509 CC)

Parents and children have a mutual obligation for assistance, affection and respect. Children living with their parents are required to offer them their services. The parents, in their turn, must offer their children the financial support considered appropriate for the establishment of financial independence, the beginning or continuation of professional activity, etc. Such expenditures enjoy a favorable treatment so far as taxation is concerned. C.

SUPPORT AND MAINTENANCE OBLIGATIONS (διατροφή από το νόμο, diatrofi apo to nomo; Arts 1485–1504 CC)

The Civil Code devotes a special chapter to support obligations of ascendants and descendants, of brothers and sisters and also to the limited right of support to the unmarried mother. Parents are always responsible for their minor child’s support and maintenance so long as the child’s income is not sufficient for this purpose.25 Adult children are bound to support their father and mother and other ascendants that are in need. Relatives in the direct ascending line are likewise bound to support their needy descendants. The degree of support depends on the needs of the person requiring it and on the circumstances affecting those who are to provide it, since their own subsistence must not be endangered. The amount of support must be sufficient to cover the real needs of the person entitled thereto, including those of upbringing and education.26 If the person entitled to support has gravely offended the person bound to pay it and this reason justifies his disinherison (see Ch. 10, Section VI), the support he receives will cover only the absolutely necessary things for subsistence. Support is usually furnished on a monthly basis and in advance unless the person entitled thereto is a minor. In the latter case, the parents are free to decide on how their obligation can be fulfilled. Support obligations cease when either the person bound or the person entitled to it dies. The law does not allow for prescription thereof. 25. AP 1268/1984, NoB 33 (1985) 807–808; 1239/1988, EEN 56 (1989) 595–596; 46/1989, ibid. 935; CA (Piraeus) 68/2005, Peir.N 27 (2005) 41–47. 26. AP 1079/1986, NoB 35 (1987) 756–757; CA (Larissa) 16/2005, , August 22, 2006.

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In special cases, brothers (and sisters) may be responsible for their brother’s (or sister’s) support.27 The court may order it for special reasons, such as minority, old age, serious disease or infirmity, which have caused the destitution of such persons. The court may also order a special kind of support obligation of the natural father of a child born out of wedlock towards the child’s mother. More specifically, it may be decided that the mother of a child legally recognized by his natural father is entitled to the expenses of childbirth and also six months’ support (two months before childbirth and four months afterwards) or, in special circumstances, e.g., if the mother has health problems due to childbirth, for one year after that event. VII.

PROTECTION OF MINORS AND OF PERSONS INCAPABLE OF ADMINISTERING THEIR OWN ESTATES

A.

PARENTAL CARE AND CUSTODY (γονική μέριμνα, goniki merimna; επιμέλεια, epimeleia; Arts 1510–1541 CC)

Parental care, the institution that has replaced paternal authority, is one of the novelties of Law 1329/1983, which entrusts the care, custody and protection of minors and of their property to both parents. Thus, the constitutional principle of equality of sexes is observed. The Italian and Belgian Civil Codes adopt the same attitude. Parental care is a duty and, at the same time, a right of the parents, aiming at serving the child’s best interests.28 It includes the duty of the parents to provide the child with the appropriate environment and means for the development of his personality, to protect the child, as well as the right of custody, discipline and education. Parental care of a child born out of wedlock belongs to the mother unless the natural father has voluntarily recognized the child. In the latter case, parental care belongs to the father as well but is exercised by him only if the mother does not or cannot exercise such care. In cases when paternity is established by court decision and the father has contested the proceedings, he can neither have the parental care of the child nor substitute the mother in that function; the court, however, may decide otherwise following petition by the father, if that serves the interests of the child, provided that the mother is unable to exercise her right of parental care or there is an agreement of the parents. In every instance of parental disagreement on the exercise of care, the parents may turn to the court that will grant relief only if it appears necessary for the protection of the child’s interests.29 Such relief must respect the equality of parents, must not discriminate on the basis of a parent’s gender, religion, race, language, nationality, ethnic or social background, or political or other beliefs, and must take 27. AP 153/1987, Hell.Dni 29 (1988) 480–481; 1304/1988, Hell.Dni 30 (1989) 1452–1455; CA (Larissa) 16/2005, above, ftn. 26. 28. CA (Athens) 2586/2005, Hell.Dni 47 (2006) 204–205. 29. CA (Athens) 4287/2005, Hell.Dni 47 (2006) 201–204.

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into consideration the opinion of the child depending on its age and maturity.30 The court appoints a special guardian when the interests of the child conflict with the interests of the parent exercising parental care. In case of divorce or annulment of marriage, provided that both parents are alive, the court decides on the exercise of parental care considering the relationship of the child with the parents and other offspring and existing agreements of the parents. Custody, which forms part of parental care, includes issues such as rearing, education, supervision of the child as well as fixing his domicile. The parent who does not live with the child has the right to freely communicate with him, including visitation. Details are determined by the court and must serve the best interests of the child. The other parent is not allowed to frustrate such contact unless there is serious reason.31 Grandparents have a similar right independent of that of the parents. Administration of the child’s property as part of parental care belongs to the parents who must administer it diligently in the best possible way.32 They may use the income to support and educate the child and to provide professional training for him. They may also use some of it to cover other family needs, but they cannot make donations out of it, unless such donations are imposed by special moral duty. Parents cannot administer property left to the child by will or given as a gift upon condition that the parents will not have its administration. They represent their minor child in every legal act or litigation, with certain exceptions specified by law. Parental care may become inactive if the parents are unable to exercise it for reasons of illness, absence or interdiction. It may also become inactive if its exercise is removed from one or both parents by the court for reasons such as violation of their obligations, inability to exercise parental care or at their request. The court order may be revoked or altered if the situation changes. Parental care terminates if the parent dies, is declared absent or loses the right to exercise parental care because he has been found guilty, by final decision, of a misdemeanor concerning the life, health or morals of the child. Naturally, it terminates if the child dies, is declared absent, attains majority, or is adopted or interdicted. B.

GUARDIANSHIP OF MINORS (επιτροπεία ανηλίκων, epitropeia anilikon; Arts 1589–1653 CC)

The minor is placed under guardianship if parental care does not exist, or is not exercised or has ceased to exist on the part of one of the parents and is inactive 30. AP 180/1986, Hell.Dni 27 (1986) 496–497; 283/1986, EEN 53 (1986) 788–790; 577/1989, Hell.Dni 31 (1990) 1271–1272; 1910/2005, Hell.Dni 47 (2006) 440–442. 31. AP 770/1986, EEN 54 (1987) 200; 1955/1986, ibid. 693–694; 197/1987, ibid. 932; 1241/1987, EEN 55 (1988) 662–663; CA (Athens) 2758/1998, Hell.Dni 39 (1998) 1646; AP 5/2005, Hell. Dni 46 (2005) 748–749. 32. MP (Athens) 3283/1987, NoB 35 (1987) 1428–1429; MP (Thessaloniki) 5/1989, Harm. 43 (1989) 34–35.

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on the part of the other. Guardianship is administered by the guardian, the supervising council and the court. The latter always appoints the guardian. If no suitable person can be appointed, guardianship is entrusted to an institution created for such purposes or to the competent social service. In case of emergency a temporary guardian may be appointed. Together with the appointment of the guardian, the court must appoint the supervising council, choosing from relatives and friends of the parents. The guardian’s tasks are the care of his ward’s person, the administration of his property and his legal representation. In specific cases the court appoints a deputy guardian, whose duty is to supervise the exercise of the guardian’s tasks, replacing him whenever the interests of the minor are contrary to the interests of the guardian. Guardianship is terminated when the minor attains age or at his death. C.

PLACEMENT OF MINORS WITH FOSTER FAMILIES (αναδοχή ανηλίκου, anadohi anilikou; Arts 1655–1665 CC)

The chapter on placement of minors with foster families is a new development, originally introduced by Law 2082/1992 and revised by Law 2447/1996 so as to be included in the Civil Code. The purpose of the placement with a foster family is the temporary actual care of a child by third persons, either because the parents or the guardian agreed thereon, or pursuant to a court decision. In other words, the role of foster parents is simply auxiliary and does not replace parental care or guardianship. Foster parents must take care of the day-to-day or urgent affairs of the minor, facilitate communication with his parents or guardian, and provide them with information concerning the child. If the stay of the child with the foster family becomes more permanent, the foster parents may request the court to remove part or the whole of parental care from the natural parents. In such a case the foster parents become guardians. The natural parents, the guardian or the court may revoke the task of the foster care of the child or change foster families. In all cases, the social services have the foster family under observation and intervene with appropriate measures when necessary. D.

JUDICIAL ASSISTANCE (δικαστική συμπαράσταση, dikastiki symparastasi; Arts 1666–1688 CC)

Judicial assistance is a relatively recent development that has replaced the old institutions of guardianship of interdicted persons (δικαστική απαγόρευση, dikastiki apagoreusi) and judicial supervision (δικαστική αντίληψη, dikastiki antilipsi). Its main characteristic is that it respects the person and his wishes, serves his best interests without undue and excessive measures and protects transactions. Persons who for reasons of psychological, mental or physical impairment are fully or partially incapable of taking care of their personal or financial affairs, spendthrifts, drug addicts or alcoholics who may expose their family members and

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themselves to financial deprivation are subjected by the court to judicial assistance, after an application by the person in need of assistance, his spouse, parents or children, or of the district attorney, or proprio motu.33 If the person suffers from physical disability, the court decides only after he files a petition. In order to formulate its decision the court takes into consideration the report of the competent social service on the necessity of the measure and the suitability of the judicial assistant and communicates, if that is feasible, with the person to be assisted. Depending on the facts of each individual case, the court may declare a person totally incapable for all or some legal acts, or it may order that for some or all legal acts the consent of the judicial assistant is needed, or it may choose a combination of the above. It must impose the least possible limitations required by his interests. Persons sentenced to imprisonment of at least two years may apply to the court to be judicially assisted for some transactions. If the reasons that lead to the judicial assistance cease to exist, the latter may be lifted by a decision of the court.34 When the condition of a person requires his involuntary hospitalization in a psychiatric hospital, permission of the court under the provisions of special laws is necessary. E.

ADMINISTRATION OF OTHER PERSONS’ AFFAIRS (δικαστική επιμέλεια ξένων υποθέσεων, dikastiki epimeleia xenon hypotheseon; Arts 1689–1694 CC)

While administration of other persons’ affairs is not conceptually a matter of family law, as it is treated in the law of obligations, similar rules apply to it as to the guardianship of minors and it thus forms part of family law. Thus, if a person is absent, his residence is unknown and his property is in need of administration, the court appoints an administrator (curator) for its administration. Similarly, the court may appoint, proprio motu, an administrator to look after urgent matters, where it is not known or is uncertain who is primarily responsible for them. SELECTED BIBLIOGRAPHY A.

BOOKS AND COMMENTARIES (in Greek)

F. Evangelidou-Tsikrika, Forms of Invalid Adoptions and Methods to Challenge It: A Critical Approach of Imperfect Adoption in Connection with Its Legal Nature (Athens, 2001). P. Filios, Family Law, vol. I (Athens-Komotini, 2003), vol. II (Athens, 2004).

33. CA (Thessaloniki) 3171/2004, Harm. 59 (2005) 1051–1055; AP 1103/2005, NoB 54 (2006) 193–194. 34. CA (Thessaloniki) 432/2003, Harm. 59 (2005) 1393.

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A. Georgiadis and M. Stathopoulos, Civil Code, vol. VIII: Family Law (2nd edn, Athens, 2003). E. Kounougeri-Manoledaki, Family Law, vols I, II (Athens-Thessaloniki, 2003). E. Kounougeri-Manoledaki, Artificial Reproduction and Family Law. Special Greek Legislation: Law 3089/2002 and Law 3305/2005 (Athens-Thessaloniki, 2005). E. Kounougeri-Manoledaki (ed.), Ten Years of Application of the New Adoption Law (Law 2447/1996). Collected Essays (Athens-Thessaloniki, 2006). A. Koutsouradis and A. Georgiadis, Protective Institutions of Civil Law (Athens, 2002). Th. Papachristou, Manual of Family Law (Athens, 2005). I. Spyridakis, Family Law (Athens-Komotini, 2006). Reference should also be made to the Recent Revision of Family Law (Law 2447/96), Collected Essays (Athens-Komotini, 1998) by the University of Piraeus and the Union of Civil Lawyers, as well as the volume titled Medical Assistance to Human Reproduction and the Civil Law, Collected Essays (Athens-Komotini, 2002). B.

BOOKS AND ARTICLES (in languages other than Greek)

P. Agallopoulou, ‘La situation juridique des enfants nés hors mariage et les soins parentaux selon le droit hellénique’, RHDI 42–43 (1987–1988) 197–203. P. Agallopoulou, ‘Les différents types de famille contemporaines selon le droit hellénique’, RHDI 55 (2002) 21–41. J. Deliyannis, ‘Les grandes lignes de la réforme du droit de la famille hellénique’ RIDC 38 (1986) 811–828. J. Deliyannis and P. Ladas, ‘Rapport Grec’ in Aspects de l’évolution récente du droit de la famille, Droit des régimes matrimoniaux in Travaux de l’Association Henri Capitant, Journées Turques 1988 (Paris, 1990) 275–288. J. Karakatsanes, Wandlungen des griechischen Ehescheidungsrechts (Athens, 1985). G. Koumantos and C. Stambelou, ‘‘Digesting’ the New Family Law – Particular Problems concerning the Application of the New Family Law’, JFam.L 28 (1990) 518–525. A. Koutsouradis,‘Grounds for Divorce and Maintenance Between Former Spouses’, , November 20, 2006. A. Papachristos, ‘Le droit hellénique de la filiation: Parenté biologique et parenté socio-sentimentale’, RHDI 59 (2006) 53–62. T. Papademetriou, ‘Marriage and Marital Property under the New Greek Family Law’, International Journal of Legal Information 13 (1985) 1–40.

Chapter 10

The Law of Succession Anastasia Grammaticaki-Alexiou*

I.

INTRODUCTION

The law of succession has its roots in ancient times and several of its basic concepts, such as testate and intestate succession, legacy or the office of the executor of a will are found in the Attic law of inheritance. Later developments followed mainly the destiny of Roman-Byzantine law in Greece (see Ch. 1, Section III). The Civil Code improved the law of succession and modernized it considerably, introducing new institutions and concepts. Undoubtedly, it is the product of a comparative study of the then existing Greek law and other Continental laws on inheritance. The law of succession is contained in Articles 1710–2035, that is Book V of the Civil Code. It is closely, however, interconnected with other branches of Civil Law, and this is manifested in the fact that certain provisions relating to succession are found in other books of the Civil Code and in its Introductory Law. The Code of Civil Procedure also contains a considerable number of rules regulating matters of succession. Law 1329/1983, which has widely amended family law (see Ch. 9, Section I), has brought to the law of succession a number of changes, which became necessary for the preservation of the systematic unity of the codified civil law. Also, Laws 2447/1996, 2521/1997, 2915/2001, and 3089/2002, introducing

*

Professor of Law, University of Thessaloniki.

Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 201–216. © 2008, Kluwer Law International BV, The Netherlands.

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new rules on adoption, recognition of child, judicial assistance, and assisted human reproduction respectively, have considerably influenced succession. The task of the legislator in formulating the rules on succession is not easy. The continuation of economic activity must not be upset by death, and the family must be protected. This calls for the reconciliation of various and frequently opposed interests: those of the deceased, his family and other relatives, the state and the creditors. These factors, combined with the pandectist influence, made the Greek law of succession highly technical, formal and detailed. Its language, following Latin or German terms and institutions, is sometimes difficult to translate into English. For reasons of clarity, Latin terms are sometimes also used when the English translation does not appear adequate. The problems are further compounded by the many fundamental differences between the Continental and the Anglo-American law in matters of property and inheritance. II.

SUCCESSION IN GENERAL

A.

DEVOLUTION OF SUCCESSION – ACCEPTANCE BY HEIRS (Arts 1710–1711, 1846, 1901 CC)

The succession ‘opens’ at the death of the decedent. In other words, estate assets and liabilities pass to the heirs (κληρονόμοι, klironomoi) and legatees (κληροδόχοι, klirodochoi),1 immediately at death. This process (επαγωγή, epagogi) takes place automatically, by operation of law alone, before the heir has taken any step to put himself in possession of the estate or has expressed any intention to accept it. There is no distinction between movable and immovable property. The appointment of an administrator or an executor is neither necessary nor normal. Although the estate devolves upon the heir from that moment, his right remains in suspense until he decides whether to accept or renounce it.2 Acceptance (αποδοχή κληρονομίας, apodochi klironomias) is the informal, explicit or implicit, declaration of a person that he wishes to be an heir and that, consequently, he waives the right to renounce the succession. If immovables are part of the estate, the declaration of acceptance must be recorded. If there are several heirs, the estate becomes the common property of those who accept it. B.

ACCEPTANCE UNDER THE BENEFIT OF INVENTORY (Arts 1902–1912 CC)

The estate passes with all its advantages and its burdens. Therefore, the heir ordinarily assumes personal responsibility for the charges and debts of the succession. 1. The term ‘heir’ is used in this Chapter to cover both intestate and testate successors, since they are treated in all respects equally in the law, while the term ‘legatee’ refers only to a person who is left by will specifically identified property, not a percentage of the estate. 2. AP (full bench) 7/2004, Hell.Dni 45 (2004) 705–707.

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The benefit of inventory (ευεργέτημα της απογραφής, evergetima tis apografis) is the privilege that the heir obtains, by causing an inventory to be made, of being liable only up to the net value of the estate. To enjoy this privilege, he must make a statement of acceptance ‘under the benefit of inventory’ before the clerk of the court of succession, which is the court of the decedent’s last domicile. A person so accepting the succession is usually in doubt about the solvency of the estate. The benefit allows him to be discharged from the debts of the succession by practically relinquishing the estate to the creditors. The inventory must be made within four months after the declaration. The heir is deprived of the benefit if he does not make the inventory in time, if he intentionally makes an incorrect inventory, if he administers the estate fraudulently or if he sells its immovables or securities without court permission. Acceptance of succession by incapable persons or persons of limited capacity is always made under the benefit of inventory. The benefit is lost if they do not draw up the inventory within a year after they become capable. C.

RENUNCIATION OF SUCCESSION (αποποίηση κληρονομίας, apopoiisi klironomias; Arts 1847–1859 CC)

A succession may be renounced by a declaration made before the clerk of the court of succession. The power of renunciation lapses four months after the heir learns of the devolution and its reason.3 This period is extended to one year if the deceased lived abroad or if the heir learned of the devolution while living abroad. If renunciation is declared, devolution of the estate upon the disclaiming person is considered as never having taken place and the estate passes to the person who would have inherited if the renouncing heir were not alive at the time of death. In the case of several persons, each one may renounce his succession right. Renunciation, like acceptance, is irrevocable. D.

UNWORTHINESS OF HEIR (κληρονομική αναξιότητα, anaxiotita; Arts 1860–1864 CC)

Klironomiki

A person who is judged unworthy is divested of his succession right by court decision. Persons unworthy of inheriting are those who: (a) intentionally killed or attempted to kill the decedent, his children, his parents or his spouse; (b) were convicted for having falsely accused the decedent of a crime; (c) intentionally and illegally hindered the decedent from making or revoking a will; (d) fraudulently, illegally or immorally forced the decedent to make or alter his will; or (e) changed or destroyed the decedent’s will.4

3. AP 493/2003, , July 20, 2006. 4. AP 1031/2003, , July 20, 2006.

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Any person having an interest in the estate may institute the relevant suit against the heir. As soon as the judgment becomes res judicata (see Ch. 16, Section IX B), devolution is considered as never having occurred. Unworthiness may not be invoked if the decedent had pardoned the unworthy by his will or by an authentic instrument. E.

VACANT SUCCESSION (σχολάζουσα κληρονομία, scholazousa klironomia; Arts 1865–1870 CC)

A succession is deemed vacant if the heirs are unknown or if it is doubtful whether they have accepted the succession. In such cases the court, on petition of any interested person or on its own initiative, appoints an administrator of the vacant succession, who acts as their legal representative. He administers the estate, proceeds to the affixing of seals and the making of an inventory of the succession, collects debts, but cannot sell any asset of the estate nor create any other obligations binding it without the permission of the court. If no heir claims the succession for a long period, the court certifies that the state is the only intestate heir. F.

CERTIFICATE OF INHERITANCE (κληρονομητήριο, klironomitirio; Arts 1956–1966 CC)

The court of succession may, at the request of an heir, grant a certificate, stating among whom and for which part the estate is to be distributed.5 This certificate of inheritance creates a rebuttable presumption that the named persons have the rights mentioned therein. If it is proved to be incorrect, the court will order its withdrawal or annulment. The heir or the executor of a will can request the person possessing an incorrect certificate of inheritance to return it to the court. G.

ACTION FOR THE DELIVERY OF POSSESSION OF ASSETS OF ESTATE (αγωγή περί κλήρου, agogi peri klirou; Arts 1871–1883 CC) THE

An heir may sue any person unlawfully possessing assets of the estate as heir (possessor of the estate), demanding recognition of his succession right and delivery of the estate or of specified assets thereof. So long as the right to sue has not been prescribed, the possessor may not assert the defense of adverse possession. The extent of the possessor’s liability in damages depends on whether he is acting in good or in bad faith.

5. AP 551/2004, , July 20, 2006.

The Law of Succession H.

METHODS BY WHICH SUCCESSORS, OTHER THAN HEIRS, ARE ESTABLISHED

1.

Legacy (κληροδότημα, klirodotima; Arts 1967–2010 CC)

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The testator may devise or bequeath specific property to a person without making him his heir. Usually, he obligates the appointed heir (but also the fideicommissarius, see below, under 2, or a legatee in the case of sub legacy) to give the legatee his legacy. Since he is not an heir, the legatee (κληροδόχος, klirodochos) is not liable for the charges and liabilities of the succession. But the testator may require him to assume them and may also impose these obligations on an heir or on a third person. The legacy is null (ademption) if the legatee dies before the testator. It is also null if the testator devised or bequeathed property belonging to someone else. 2.

Fideicommissum (καταπίστευμα, katapisteuma; Arts 1923–1941 CC)

By the institution of fideicommissum, the testator may designate not only a living person but also future one(s) to receive the estate or a percentage thereof after the present heir dies. The fideicommissarius becomes an heir upon receipt of the succession. He is an heir not of the present heir but of the testator himself. A fideicommissarius must be distinguished from the legatee who inherits a specific item of property. Trust (εμπίστευμα, empisteuma), which does not exist in Greek law as such (see Ch. 7, Section IV and Ch. 17, Section I C), must also be distinguished from fideicommissum, although they both share some common traits. Fideicommissum is an institution of the law of succession, while trust is a broader equitable obligation, that enables people, unable to hold the legal ownership in property themselves, to take the latter’s benefit. 3.

Modus (τρόπος, tropos; Arts 2011–2016 CC)

The testator may impose on an heir or legatee an obligation to do or give something without giving the beneficiary the right to demand performance. For example, the testator may require distribution of an amount of money to the poor, publication of a book or care of a favorite pet. However, an heir, the executor of the will or any other person who would be directly affected, may request enforcement of this testamentary burden. If enforcement is in the public interest, the appropriate public authority may request it. 4.

Gift Mortis Causa (δωρεά αιτία θανάτου, dorea aitia thanatou; Arts 2032–2035 CC)

A gift mortis causa is a legal act, to take effect after the donor’s death, by which he donates the whole or part of his property (e.g., a specific item). What differentiates

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this type of gift from a gift inter vivos (donation; see Ch. 6, Section II A) is that the donee does not receive the donated goods during the donor’s life. A gift mortis causa must be made by notarial act and is revocable unless the parties have agreed on irrevocability. In the latter case revocation may be effected only in the manner prescribed for gifts inter vivos. 5.

Agreements of Inheritance (Art. 368 CC)

Greek law declares null all agreements by which the passing of the succession to a person is required or excluded.6 III.

INTESTATE SUCCESSION (εξαδιαθέτου διαδοχή, ex adiathetou diadochi)

A.

CLASSES OF INTESTATE HEIRS (Arts 1813–1824 CC)

The criteria of parentage, marriage, and – marginally – nationality are essential to the designation of an intestate heir. In other words, the heirs designated by the law are persons related to the decedent by parental or marital ties. There are six classes of intestate heirs. The first four are based on the natural order in which the generations succeed one another. Each class (or parentel) includes all persons descending from a common ancestor. Recognition of a child born out of wedlock, subsequent marriage of his natural parents or adoption creates a bond of filiation as well. The fifth class comprises the surviving spouse, and in the sixth class the state is the heir. The first class includes the direct descendants of the deceased (i.e. children, grandchildren, great-grandchildren) without any distinction of gender or primogeniture. The descendants, who may be born in different marriages, inherit in equal portions by line of succession and per capita when they are of the same degree of affinity. The descendant of the nearest degree excludes all other descendants of a more remote degree belonging to the same root. In artificial reproduction (see Ch. 9, Section IV A), the biological bonds give way to other ties. Provided that court permission has been obtained in advance, a child born through surrogate motherhood is related to the mother who wished his birth and not to the surrogate mother. In the case of heterologous artificial insemination, where genetic material of a donor has been used, the offspring is related to and inherits the non-natural father. Similarly, on condition of prior court permission, a child born posthumously is related to the father and may inherit. A child born out of wedlock (see Ch. 9, Section IV C) is a relative only of his mother and her relatives and succeeds her in the first class. If his natural father 6. AP 583/1994, Hell.Dni 36 (1995) 160–161.

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recognizes him, he enjoys the rights of a child born in marriage and inherits as a legitimate child of the father. The surviving spouse is grouped with descendants of the first class and his portion is one fourth of the estate. He also receives an extra portion, consisting of the furniture, house wares, clothing etc., used by either spouse or by both spouses. This extra portion is also given to the spouse when he inherits with the other three classes of heirs. The second class of heirs includes the decedent’s parents, his brothers and sisters, as well as the children and grandchildren of the brothers and sisters who have passed away before the decedent. Half-blood brothers and sisters concurring with full-blood brothers and sisters receive half the portion of the latter. The third class includes the grandparents of the decedent. For those who do not survive, their children and grandchildren take their portion. The fourth class consists of the great-grandparents of the decedent, who inherit per capita irrespective of line. The surviving spouse, concurring with relatives of the second, third or fourth class, receives one-half of the estate plus the extra portion already mentioned. If no relatives of the four classes exist, the spouse inherits all the estate in the fifth class. In the sixth class, the heir is the state of the decedent’s nationality. B.

ACCRETION (προσαύξηση, prosauxisi; Arts 1807, 1808, 1823 CC)

The heir may very well not be in a position to inherit either because he died before the opening of the succession, was disinherited, renounced the succession, was declared unworthy to succeed or was not born alive if he had been a nasciturus (see Ch. 5, Section II B). In the first three classes of intestate heirs, his place and portion passes to his descendants (successio graduum). C.

COLLATION (συνεισφορά, syneisfora; Arts 1895–1900 CC)

Collation takes place only between direct descendants of the decedent. It is the supposed return to the estate, which an heir makes of property that he received from the decedent or of expenditures that the decedent made for the heir’s education, if they exceeded the amount appropriate to the financial condition of the decedent. However, collation cannot take place if the decedent had expressly excluded it when he gave the property or made the expenditure. Collation is effected by logistically adding the collated property to the estate. Its value then reduces the share of the heir who had received it in advance. If the property received exceeds the heir’s share, he is not required to return the excess. The other heirs divide the succession among themselves. In this way, the law seeks to maintain equality among children and among other descendants.

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IV.

TESTAMENTARY SUCCESSION (διαδοχή εκ διαθήκης, diadochi ek diathikis)

A.

CAPACITY TO MAKE A WILL (Arts 1716, 1717, 1719, 1720, 1723, 1748 CC)

Every adult person of sound mind may make a will (διαθήκη, diathiki). Those incapable of making wills in general are minors, persons under judicial assistance (see Ch. 5, Section V B and Ch. 9, Section VII D) with full forfeiture of capacity, and persons who, at the time the will is executed, are not conscious of their actions or do not enjoy the use of reason because of a psychological condition or mental illness that drastically impairs their capacity to express their wishes. Incapable of making specific kinds of wills are the persons who cannot read and write and, therefore, cannot make a holographic will (see below, C 1), and the persons who cannot read and for this reason cannot make mystic wills (see below, C 3). Also, mute persons cannot make public wills (see below, C 2). Monks and nuns are incapable of disposing of their property, which passes to the monastery where they live, subject to the share of forced heirs (see below, Section V A). B.

FORM OF WILLS

The law provides for two categories of wills, that is ordinary and extraordinary wills. For ordinary wills, the testator may avail himself of one of the three following forms: holographic, public, and mystic (secret). Under extraordinary circumstances, a person may make his will in a simpler manner. The law establishes three kinds of extraordinary wills: wills made at sea, military wills and wills made during a blockade. Except where the law provides otherwise, the formalities to which the wills are subject must be always observed at the price of nullity. The testator must make his will in person; the possibility of willing by the intervention of another person, such as an agent or any other representative, does not exist in Greek law. Furthermore, joint or mutual wills are not recognized. C.

ORDINARY WILLS

1.

Holographic Will (ιδιόγραφη διαθήκη, idiografi diathiki; Arts 1721, 1722 CC)

A holographic will may be made in any language, must be handwritten by the testator in its entirety and also dated and signed by his hand. The testator must also sign any additions made in the margins or as a postscript. Obliterations, erasures

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or other such defects are noted by the court that publishes the will and may cause its partial or total nullity. 2.

Public Will (δημόσια διαθήκη, dimosia diathiki; Arts 1724–1737 CC)

A public will is made before a notary in the presence of three witnesses or of another notary and one witness. Abroad, Greek consuls substitute notaries. This type of will presents certain advantages: it is a form that may be used by persons who cannot read, write or sign, makes impossible the destruction of the will and limits considerably the possibility of nullity due to vagueness. It also has the increased proving force of an authentic document and is an enforceable instrument. But a public will has disadvantages as well: it makes the testator’s wishes known to other people, costs more and, notwithstanding the fact that the wishes of the testator may be stated with absolute clarity and with no faults, the non-observance of one of the many formalities required may lead to the eventual nullity of the will. The testator states his wishes before the witnesses and the notary who, after having reduced them to writing, reads the text aloud to the testator in the presence of the witnesses, making express mention of the fact that all formalities prescribed by the law have been observed. Deaf testators read the statement themselves. The will of deaf testators who cannot read is made in the presence of five witnesses or another notary and three witnesses. An interpreter is employed where the testator does not know Greek. 3.

Mystic (Secret) Will (μυστική διαθήκη, mystiki diathiki; Arts 1738–1747 CC)

The mystic will is an intermediate form between the holographic and the public form. The testator is under no obligation to put down his will in his own handwriting but must only sign it. The instrument, sealed in an envelope, is then handed to the notary (or the Greek consul) in the presence of three witnesses or another notary and one witness. The testator declares that the instrument is his testament. The notary makes a note on the envelope with the name of the testator and the day of presentation. Both the testator and the witnesses must sign under the note. If the testator declares that he is unable to sign, a mention of it must replace the signature. The notary then draws an act including the date and place, the names of the testator, the notary and the witnesses and the fact that all formalities prescribed by law have been observed. This act is read aloud to the testator and the witnesses and is also signed by them. A basic disadvantage of the mystic will is that it may be declared null if a formality is omitted. It may also be drafted in a vague and unclear manner that will raise problems of interpretation. However, its advantages over the other forms of wills are considerable since the dispositions of the testator remain secret for

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everybody and are secured by the notary. A will invalid as a mystic will may be valid as holographic will if it satisfies the requirements of the latter. D.

EXTRAORDINARY WILLS

1.

Wills Made at Sea (Arts 1749–1752, 1756 CC)

The will made at sea is a remnant of old times when the duration of voyages by boats was very long. A person on a ship flying the Greek flag may, during the voyage, make his will by an oral declaration before the captain or his deputy. Aboard warships, the declaration is made before the head of the economic service and, in his absence, before the captain or his deputy. Dispositions in favor of crewmembers who are not relatives of the testator are null. This latter rule, quite strangely, applies also to holographic wills made during a voyage at sea. 2.

Military Will (Arts 1753–1755 CC)

Military personnel may make a military will during a military expedition, a blockade, a siege or imprisonment or on a warship participating in an expedition. The will is made orally before an officer in the presence of another officer or two witnesses. The will must be reduced to writing, read to the testator, signed by him as well as the receiving person and the witnesses. 3.

Will During Blockade (Arts 1757–1762 CC)

Similar to the formalities required for a will at sea are those for a will made during a blockade before a notary, a justice of peace, a mayor, a parish chairman, a police officer, or a hospital director. Extraordinary wills become invalid after lapse of three months if the special circumstances that justified their making ceased to exist and the testator is still alive. E.

CONTENTS OF TESTAMENTARY DISPOSITIONS (Arts 1781–1812 CC)

The usual dispositions contained in a will are those by which the heirs or legatees are established. However, quite often complicated or ambiguous ways of expression make it difficult to determine with certainty who the testamentary beneficiaries are and in what shares they inherit. To correct this, the law introduces a number of interpretative rules. For example, if the shares left to the heirs and legatees do not exhaust the estate, its remaining part is subject to intestate succession. If such shares exceed the disposable estate, they are proportionately reduced. The testator may leave to one or more persons part or all of his estate, may set up legacies or fideicommissa, attach burdens, conditions and time limits, appoint

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substitutes, recognize his natural child, revoke his previous will, determine the way of distribution of his estate, appoint an executor, etc. Conditions that are impossible, incomprehensible, illegal or immoral, are reputed not written. F.

VALIDITY OF WILLS (Arts 138, 1718, 1781–1788, 1796 CC)

It is very important for the testamentary disposition to correspond to the true wishes of the testator. A will made fictitiously, i.e. with no testamentary intent, is null. A disposition of a will is voidable if the testator was in error concerning the identity of the person he wished to designate or the thing he intended to give. Also voidable is a disposition due to erroneous causes mentioned in the will, without which the testator would not have made such a disposition. A disposition in favor of the spouse may, in case of doubt, be voidable if the marriage is null or was dissolved while the testator was still alive or if he had validly filed a divorce petition. The whole will is voidable if the testator has omitted a forced heir whose existence was not known to him at the time of his death or who was born or became an heir after the making of the will. Annulment is barred if there is evidence that the testator would have proceeded with the making of his will even if he was aware of the actual situation. A disposition is voidable if it is the result of threat or fraud. The whole will or a particular disposition is null if it does not conform to the law or to morality. To summarize, a will is null from the beginning if: (a) the formalities prescribed by the law were not observed; (b) it was made by an incapable person; or (c) there are vices in its contents. A will may be wholly or partially invalidated if: (a) it was revoked; (b) it was voidable and has been annulled by the court; (c) the establishment of an heir was frustrated, as when he renounced the succession; or (d) three months have lapsed since the special circumstances, justifying the making of an extraordinary will, ceased to exist. Invalidation may be sought by anyone who directly benefits from it. But if the testator has omitted a forced heir, it is only he who may request invalidation. G.

SUBSTITUTION OF TESTAMENTARY HEIR (υποκατάσταση κληρονόμου εκ διαθήκης, ypokatastasi klironomou ek diathikis; Arts 1809–1812 CC)

Substitution of an heir takes place if the testator indicated a substitute in case the original heir lost his right of inheritance before or after the estate vests in him. The testator may even indicate a substitute for the substitute. This is called ‘common’ substitution, distinguished from the different institution of substitutio fideicommissaria or specific fideicommissum (see above, Section II H 2), which applies to legacies and denotes a disposition, according to which a specific asset given to a legatee passes after a certain time or event to another person. Specific fideicomissa

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are null unless they are for the public benefit or in favor of close relatives of the testator. H.

REVOCATION OF WILLS (ανάκληση διαθήκης, anaklisi diathikis; Arts 1763–1768 CC)

Wills are freely revocable by the testator until his death. The same degree of capacity for making a will is also necessary for its revocation. Revocation must observe the formalities prescribed by the law. There are general forms, appropriate to all wills (by making a subsequent will or by notarial act), and special ones, appropriate to holographic wills (intentional destruction or crossing out of the instrument) and mystic ones (recovery of instrument from the notary). Revocation of the revocation of a will is always possible in one of the general forms of revocation. The Civil Code does not contain any provision concerning the destruction or loss of a will due to the action of a third person or to an unforeseen event. Both doctrine and the cases agree that such a destruction or loss does not necessarily result in the legal inexistence of the will. The person claiming rights under it may allege and prove that the will had been validly executed, what the content of its dispositions was and that it was destroyed or lost improperly or by accident. I.

PUBLICATION OF WILLS (Arts 1769–1780 CC)

The term ‘publication of a will’ (δημοσίευση διαθήκης, dimosieusi diathikis) denotes the announcement of its contents by the competent court in a manner similar to probate. The notary in possession of a public or mystic will, and any person possessing a holographic will, must present it (the original document) to the court as soon as the decease of the testator becomes known. Any document bearing the characteristics of a will, even those that appear null and void, must be published. The death certificate must accompany the will. For public or mystic wills, the competent court is the one-member district court of the place where the notary performs his duties. Greek consular authorities are competent for the publication of such wills made before them. A holographic will may be presented to any district court of the country and any Greek consular authority abroad. Wills made, deposited or published abroad may be published in Greece as well. The person petitioning for the publication of a holographic will may also request the court to declare it authentic (κήρυξη κύριας διαθήκης, kiryxi kyrias diathikis). This declaration serves as a rebuttable presumption of its authenticity so long as it has not been contested within five years following the decision. These records are promptly sent by the secretariat of the court or the consular authority to the secretariat of the One-member District Court of Athens as well as to the secretariat of the one-member district court of the place of domicile or residence of the testator and are kept in their archives.

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THE EXECUTOR OF THE WILL (εκτελεστής διαθήκης, ektelestis diathikis; Arts 2017–2031 CC)

The testator may confide the faithful execution of the dispositions contained in a will to one or more testamentary executors, who must enjoy full legal capacity. An executor must unconditionally accept his appointment before he can assume his duties. The executor has the right to take actions allowed by the testator or necessary for the execution of the testamentary dispositions. He may also administer the whole or part of the estate and his authority is a limit to the rights of the heirs or legatees or other beneficiaries. However, he may not do certain things, such as the sale of immovables or of securities, settlements etc., without permission of the court. The provisions on mandate (see Ch. 6, Section II I) govern the executor’s liability for damages caused by his fault. If more executors are appointed they act in common, and in case of disagreement the majority decides. If the administration of the estate is included in the executor’s duties, then he may sue and may be sued for claims related to it. The executor’s office terminates if he dies, becomes incapable or resigns. It also terminates if the testamentary heir (or heirs) presents adequate guaranty that he will execute the testamentary dispositions for which the executor was appointed. The court may remove the executor from his office, if he violates his duties or is unable to administer the estate.

V.

FORCED HEIRSHIP (νόμιμη μοίρα, nomimi moira)

A.

FORCED HEIRS (Arts 1825–1826 CC)

The rules on forced heirship protect the family and, more specifically, the closest relatives of the decedent, who is not allowed to exclude them. Forced heirs are always entitled to a certain percentage of the estate and they have all the rights and duties of other heirs. Forced heirs in general are the descendants (including those born through surrogate motherhood, those who are related to the mother wishing the child, and those adopted), the parents, as well as the surviving spouse of the decedent. If there are descendants, the parents are excluded, while the surviving spouse’s portion may vary between one-eighth and one-half of the estate, depending on the concurring forced heirs (see above, Section III A).

B.

THE LEGITIMATE PORTION AND ITS PROTECTION (Arts 1825–1838 CC)

Forced heirs are entitled to one-half of their intestate share. To determine it, one must include in the estate the shares of disinherited heirs, of those who renounced

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the succession and those of unworthy heirs.7 Therefore, the legitimate portion does not increase if a co-heir has lost his succession right. The forced heir’s right may be inherited. If for any reason the forced heir’s right is not exercised, it devolves upon his heirs under the rules of intestate succession. Any testamentary dispositions to the prejudice of the forced heir or any restrictions imposed on his share by the will are null. If other heirs refuse to give the forced heir assets of the estate corresponding to his share, he has the right to institute an action, demanding restitution. Donations by the testator during his lifetime to the detriment of the estate and, consequently, to the legitimate portions of forced heirs, are cancelled if the estate at death does not suffice to cover such shares. VI.

DISINHERISON (αποκλήρωση, apoklirosi; Arts 1839–1845 CC)

The testator has the general right to exclude from succession any person other than the forced heirs. This is a general form of disinherison, which does not require any form or justification. Disinherison in the narrower sense takes place when a forced heir is deprived of his share by the testator for a just cause.8 The testator may deprive a descendant of his share if the latter: (a) attempted to take the life of the testator, his spouse or another descendant of his; (b) willfully caused bodily injuries to the testator or to his spouse who is also the descendant’s other parent; (c) was guilty of a felony or a serious intentional misdemeanor against the testator or his spouse; (d) maliciously neglected his obligation to sustain the testator; or (e) leads an immoral or dishonorable life against the will of the testator. The testator may disinherit his parent for reasons (a), (c), or (d). Disinherison of the spouse is allowed if the testator had, at the time of death, the right to apply for divorce on a ground due to fault. The reason for disinherison must exist at the time the will is made and must be mentioned therein. The right of the testator to disinherit the heir may be extinguished by pardon. In addition to the above-mentioned causes of disinherison, the testator may disinherit a forced heir for his own benefit if he leads a prodigal life or is indebted. This is applicable only in the case of a parent disinheriting his descendant, and it is accomplished by bequeathing the forced share to the forced heir’s descendants or by designating an executor, or by both means. In this case, the testator must also provide for the sustenance of the disinherited heir.

7. AP 518/2006, , July 20, 2006. 8. CA (Thessaloniki) 2855/2002, Harm. 58 (2004) 375–379.

The Law of Succession VII.

RELATIONS OF THE HEIR WITH THE SUCCESSION CREDITORS, HIS CO-HEIRS, AND THIRD PERSONS

A.

JUDICIAL LIQUIDATION OF SUCCESSION (δικαστική εκκαθάριση της κληρονομίας, dikastiki ekkatharisi tis klironomias; Arts 1913–1922 CC)

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The creditors of an estate may request from the court its judicial liquidation. The court appoints a liquidator, who is charged with the administration of the estate. Within one month after the decision is served upon him, he invites the creditors of the decedent to present their claims. He also makes an inventory of the estate, ascertains the claims, collects the debts and sells the movables and immovables of the estate. When the assets of the estate are sufficient to satisfy all claims, the liquidator pays the creditors. If not, the liquidator requests a court order for the proportionate payment of all creditors who have presented their claims. The creditors of the heirs are not entitled to participate in the liquidation and its proceeds.

B.

COMMUNITY AMONG HEIRS (κοινωνία κληρονόμων, koinonia klironomon; Arts 1884–1894 CC)

Where there are several heirs, the estate constitutes, until partition, their common property and they must deal with it jointly. They are also liable for the debts of the estate in proportion to each share. An heir may sell his share. But if a particular asset of the estate is to be transferred, all co-heirs/co-owners must act in common. However, decisions concerning the administration of the estate are taken by a majority-of-shares rule. Any heir may demand the partition of the estate at any time. Partition is voluntary, when it is made between all the co-heirs by their mutual consent, or judicial, when it is made under the authority of the court. The latter may decide partition in kind if that is feasible. If it is impossible or inconvenient, then the court orders the sale of the property by public auction. The testator may prohibit partition for a period not exceeding ten years. He may regulate by his will the mode of partition or leave it to the judgment of a third person. He may also allocate a specific asset to a particular heir, which is a form of partition. Partition must be distinguished from an agreement to distribute specific items after death, made with some or all the descendants during the ascendant’s lifetime (νέμηση ανιόντος, nemisi aniontos). The ascendant is not bound by such distribution when he makes his will, neither may the distribution prejudice the forced heirs.

216 C.

Anastasia Grammaticaki-Alexiou SALE OF THE ESTATE (Arts 1942–1955 CC)

The heir may sell his share in the estate in whole or in part. The buyer does not become an heir but he acquires all that the heir would acquire. The sale is effected by notarial deed. The seller is not liable for any real or legal defects of the estate. The buyer is liable towards the creditors of the estate together with the seller unless the latter has made use of the benefit of inventory (see above, Section II B). BASIC BIBLIOGRAPHY (in Greek unless otherwise indicated) P. Agallopoulou, ‘Succession Law’ in Basic Concepts of Greek Civil Law (translated into English by Y. Kotsovolou-Masry, Athens-Komotini, 2005). E. Dakoronia, Interpretation of Wills in Greek Law (Athens, 2005). Ph. Drakidis, ‘Incidences de la caducité de la réserve de l’un des conjoints sur la succession testamentaire de l’autre’, RHDI 19 (1966) 60–69 [in French]. P. Filios, Law of Succession, vol. I: General Part, vol. II: Special Part (Athens, 2003). N. Livanis, Elements of the Law of Succession (Athens, 2006). N. Papantoniou, Law of Succession (5th edn, Athens, 1989). A. Pelleni, ‘Contesting the Forced Heirship by Donations Inter Vivos on the Part of the Inherited Persons and Consequences under Greek Law’, RHDI 57 (2004) 455–464 [in English]. N. Psouni, Law of Succession, vols I, II (Athens-Thessaloniki, 2004). N. Psouni, ‘Nouveaux développements en droit de succession hellénique’, RHDI 59 (2006) 31–51 [in French]. I. Spyridakis, Certificate of Inheritance (Athens, 1998). I. Spyridakis, Disinherison (Athens, 1998). I. Spyridakis, Forced Heirship (Athens-Komotini, 1999). I. Spyridakis, Intestate Succession (Athens-Komotini, 1999). I. Spyridakis, Revocation of Will (Athens-Komotini, 2000). I. Spyridakis, Law of Succession (Athens-Komotini, 2002). P. Tsilas, A Survey of the Greek Law of Inheritance (Washington DC, 1979) [in English]. E. Valavani-Polatidou, Succession Rights of Children Born out of Wedlock (Thessaloniki, 1995). E. Zervogianni, ‘On Some Aspects of Inheritance Contracts’, RHDI 56 (2003) 167–180 [in English].

Chapter 11

Commercial Law † Nicholas A. Deloukas* Revised by Evanghelos Perakis**

I.

INTRODUCTORY REMARKS AND GENERAL PROVISIONS

In 1828, soon after obtaining its independence from the Ottoman rule, the modern Greek State adopted the Napoleonic Code of Commerce of 1807 by ordinance of its first Governor, Ioannis Capodistrias. Even before the independence, this Code was actually applied in the transactions between Greek merchants. An official translation of the Commercial Code was made available in 1835, following its formal entry into force as the Law on Commerce (LC), by virtue of Royal Decree of April 19/May 1 1835. Since then, the Law on Commerce underwent many amendments so that actually only a few Articles of Book I (‘Of Commerce in General’) still remain in force, while Books II and III (Maritime and Bankruptcy Law) were replaced in 1878 and 1958 respectively. In accordance with Article 1 LC, ‘merchants (έμποροι, emporoi) are those who are professionally engaged in commercial activities.’ Such commercial activities are enumerated, in what has ended up being a merely indicative

* Professor of Law (emer.), University of Athens. ** Professor of Law, University of Athens. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 217–260. © 2008, Kluwer Law International BV, The Netherlands.

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listing, in Articles 2 and 3 of a separate enactment, i.e. Royal Decree of 2/14 May 1835 on the jurisdiction of commercial courts, which in fact is a partial reproduction of Book IV of the Napoleonic Code of Commerce. Although the commercial courts were abolished in 1887, the above Royal Decree is still of importance, since it contains the list of commercial operations which are able to confer the status of a ‘merchant’, if conducted professionally. Such activities are the following (Art. 2): (a) purchase for resale or leasing; (b) business of manufacture, commissions, transport of goods or persons by land or internal waters; (c) agency, supplies, sales by auction and show businesses; (d) money exchange, banking and broker activities; and (e) liabilities assumed on bills of exchange and promissory notes. The commercial activities of maritime commerce enumerated in Article 3 thereof are: (a) purchase or sale of seagoing vessels; (b) charters; (c) carriage of goods and passengers by sea; and (d) marine insurance and, generally, all operations pertaining to the shipping business. Other activities such as stock exchange and warehouse operations, as well as liabilities arising from checks, were declared to be commercial activities by subsequent statutes. Commercial operations (εμπορικές πράξεις, emporikes praxeis) are governed by special commercial legislation that is distinct from the civil law framework. The main characteristics of commercial law, compared with those of civil law, are: a certain degree of informality (except for bills of exchange, promissory notes and checks, which are rigidly formal), and proof by witnesses at the discretion of the court without regard to the amount of the claim (see Ch. 16 VII D in f.). Also, in view of the fact that commercial transactions are considered to be financially risky, the legal capacity to enter into such transactions is restricted. Minors, i.e. persons who have not completed 18 years of age, are not allowed to engage in commercial operations and all obligations assumed by a minor in connection with such commercial operation are null and void. Merchants can be declared bankrupt and be personally detained for some debts. Although ‘merchants’ are those who engage in commercial activities, the law itself assigns the quality of ‘merchant’ to some persons, irrespective of the kind of activities they engage in. This is mainly the case of certain legal entities, such as the corporation (société anonyme) and the limited liability company (see Ch. 12). Since the original enactment of the Law on Commerce, several attempts were made to revise it which, however, remain incomplete. In 1981, the draft of a new commercial code was submitted to the Minister of Justice. The draft was twice again elaborated (in 1991, and then again in 1996), but it has never been enacted by Parliament. No other draft law is in preparation, although bankruptcy law is currently under revision. Recent legislation (Law 3419/2005) introduced the system of commercial registry where all merchants, natural persons or legal entities, will have to be registered. The new system is scheduled to be operative as from January 1, 2008, unless such date is postponed (as it is most likely to be), so that all necessary infrastructure be set up.

Commercial Law II.

BANKRUPTCY LAW

A.

ORDINARY BANKRUPTCY

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In Greece, as in other countries whose commercial legislation was influenced by the French Commercial Code, bankruptcy law is considered to be part of commercial law. Bankruptcy (πτώχευση, ptocheusi), which is available only to merchants, is governed by the Law of December 13, 1878, which replaced Book III of the Law on Commerce and was amended by the Law of February 22, 1910 and by Necessity Law 635/1937. Minor amendments were also introduced by other laws. Under the present system, the court may declare bankrupt those merchants, natural persons or legal entities, who have stopped their payments or have declared before the clerk of the court that they suspend their payments (Art. 525 LC). Bankruptcy may also be pronounced against a deceased merchant within one year from his death, provided he had stopped his payments when alive. Partnerships, corporations and all other companies engaging in commercial operations may also be declared bankrupt (Art. 526 LC). The bankrupt is deprived of the management and administration of his entire estate, but assets acquired after he was pronounced bankrupt are exempted from bankruptcy proceedings and remain his exclusive and free property. Post-bankruptcy assets are only available to post-bankruptcy creditors. A receiver (σύνδικος, syndikos) is appointed by the court after consultation with the general meeting of creditors, in order to manage and administer the estate for the purpose of liquidation and distribution to the creditors in proportion to the size of their claims. The receiver must consult with a court-appointed judge rapporteur on all matters pertaining to bankruptcy. Actions concerning the estate of the bankrupt must be brought against the receiver (Art. 534 LC). All claims against the bankrupt become due as from the date of the decision pronouncing the bankruptcy (Art. 535 LC) and all interest ceases to accrue, except for claims secured by mortgage or pledge (Art. 536 LC). However, the secured creditors may not foreclose on the properties mortgaged or pledged before the secured claims mature (Art. 665 LC). The court also fixes the retroactive date, with a maximum limit of two years before the declaration of bankruptcy, upon which the payments of the bankrupt had ceased, from which date onwards (and within ten days prior to it), all gratuitous transfers of assets are null and void (Art. 537 LC). Payments of matured debts as well as any other act for value of the bankrupt which took place within such retroactive period of time (ύποπτη περίοδος, ypopti periodos; suspect period) may be rescinded if the payees or those who contracted with the bankrupt acted with knowledge of the cessation of payments (Art. 538 LC). In order for the creditors to participate in bankruptcy proceedings and the distribution of the proceeds of liquidation, they must file their claims with the clerk of the court or the receiver and produce documents and data providing evidence of their claims within 20 days from an invitation published in the daily press and communicated to them in writing. Such period of time is extended for those not

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residing at the court’s seat. The claims so filed are reviewed by the judge rapporteur and the receiver in the presence of the creditors concerned and, eventually, the bankrupt himself and the creditors whose claims have already been reviewed and accepted. All these persons may raise objections. The creditors whose claims are reviewed must also take an oath and state that their claims are true and honest for the amount accepted. Creditors residing abroad may be absolved from such oath by the judge rapporteur in consultation with the receiver. Following acceptance of their claims, the creditors may participate in the general meetings of creditors (Arts 582–596 LC). Creditors who are secured by a mortgage or a lien are satisfied by preference and participate in the general meetings only in relation to the unsatisfied portion of their claims (Art. 648 LC). Within three days from the expiration of the time limit fixed for the taking of the oath, those who have been duly sworn in are invited to a meeting in order to deliberate on a possible compromise with the bankrupt. The compromise is validly reached if accepted: (a) by a majority of creditors representing three-quarters of the aggregate amount of claims, if the sum offered by the bankrupt is equal to at least 60 per cent of the claims, or representing four-fifths of the claims, if the amount offered by the bankrupt is less than 60 per cent but in excess of 25 per cent; (b) by a majority of two-thirds of the creditors representing 80 per cent of the amount of claims, if the offered sum is less than 25 per cent; or (c) by a majority of the creditors representing three-quarters of the amount of claims in case of a compromise by means of which the entire estate of the bankrupt was abandoned to the creditors (Art. 600 LC). The compromise requires confirmation by the court (Art. 607 LC) and is also binding upon the dissenting creditors (Art. 610 LC); it can be rescinded if the bankrupt fails to perform his obligations under it; and it is ipso iure invalidated if the bankrupt is subsequently convicted for fraudulent bankruptcy (Arts 615–616 LC). If no compromise is reached, the creditors are then considered to be ipso facto acting jointly (ένωση πιστωτών, enosi pistoton; status of junction) and decide on all basic matters concerning the bankruptcy in general meetings convened by the judge rapporteur (Arts 625–635 LC). If the bankruptcy proceedings cannot continue because of lack of assets, the court may pronounce them suspended at the suggestion of the judge rapporteur, following consultation with the receiver. In such a case, the creditors resume their rights against the person and the estate of the bankrupt. The bankrupt and any other interested party may request revocation of the court decision by proving that there exist sufficient assets for continuing the proceedings or by advancing the necessary sums to the receivers (Arts 637–638 LC). All property of the bankrupt is auctioned by the receiver, if not already auctioned by the mortgagees and pledgees, and the proceeds are distributed among the creditors in proportion to the respective claims. Mortgages and pledges are satisfied by preference out of the security for the entirety of the respective claims (Arts 660–667 LC). Negotiable instruments sent to the bankrupt for collection and goods sent to be sold by him on consignment may be repossessed by the sender under certain conditions (Arts 668–673 LC). Fraudulent bankruptcy constitutes a criminal offense and is prosecuted ex officio. The receiver must deliver to the public prosecutor all documents and data requested (Arts 694–695 LC).

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Bankruptcy has some adverse personal consequences for the debtor and entails certain incapacities: the debtor is not allowed to exercise a number of activities (including the profession of the merchant); his professional correspondence is opened by the receiver; his detention may be ordered as a police measure. The incapacities may be lifted by the court either: (a) by full payment of all creditors as to the principal claim and interest accrued up to the pronouncement of bankruptcy; or (b) by compromise with the creditors; or (c) by lapse of ten years from the date of pronouncement of bankruptcy (Art. 14 of Necessity Law 635/1937). A new bankruptcy code is presently under preparation. Regulation 1346/2000 on insolvency proceedings also applies.1 Under this Regulation, Greek courts have jurisdiction to open ‘main’ insolvency proceedings against a debtor having the center of his main interests (COMI) in Greece, which will be recognized in the other Member States ‘with no further formalities.’ Greek courts can also open ‘secondary’ insolvency proceedings against a debtor having his COMI in another member state, but possesses an establishment in Greece. These proceedings are restricted to the Greek assets of the debtor. Inversely, Greece will recognize main proceedings opened in other Member States. B.

COMPULSORY ADMINISTRATION OF ENTERPRISES AND AGREEMENT WITH CREDITORS

Beyond the ‘traditional’ bankruptcy proceedings, special laws have introduced additional collective proceedings applying to undertakings, whether commercial in nature or not. Under Articles 1034–1046 CCiv.P, an enterprise may be subjected to compulsory administration for the purpose of satisfying pecuniary claims made against it. An administrator is appointed by the one-member district court at a creditor’s petition. Such administrator can be a creditor, a third person or even the debtor himself. Compulsory administration ends in case of foreclosure on the assets of the enterprise or when the enterprise is declared bankrupt. Special provisions also apply when the enterprise operates under the legal forms of corporation or partnership. Law Decree 3562/1956 on subjecting corporations to the management and administration of creditors and placing them under special liquidation states that, instead of being declared bankrupt, corporations that stop payments may be subjected either to the management and administration of the creditors or to special liquidation by the district court, upon petition by creditors representing the absolute majority of the claims (Art. 1). Such corporation is first placed under provisional administration upon consent of a special committee appointed by the Governor of the Bank of Greece and consists of experts in financial matters, senior officers of the Bank of Greece and industrialists (Arts 2, 3). The court appoints as administrator the person proposed by creditors representing the aggregate majority of the claims and, in case of disagreement, the person 1.

Council Regulation 1346/2000 of May 29, 2000 on insolvency proceedings, OJ L 160/1–18, 2000.

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proposed by the above committee. As from the day following the filing of the creditors’ petition with the above committee for its approval, foreclosure against corporate assets is prohibited and any bankruptcy proceedings are suspended (Art. 7). The administrator proceeds with taking any appropriate action for preserving corporate assets and, if he considers this to be beneficial, he continues the corporate activities. He may neither sell nor mortgage real estate nor enter into contracts of more than one year’s duration without the court’s permission (Art. 9). The administrator prepares an inventory of corporate assets and invites the creditors to submit and substantiate their claims. He then convokes the general meeting of shareholders in order to decide on the continuation or not of the management and administration of the corporation by the creditors. In case of disagreement, the president of the Court of Appeals decides irrevocably on the matter (Art. 9). If it is decided that the corporation will continue to operate under the management and administration of the creditors, all functions of the general meeting of shareholders are transferred to the assembly of creditors and all management functions to an administration committee appointed ad hoc by the assembly of creditors (Art. 11). The corporation is placed under special liquidation: (a) if it was so originally decided by the court when the corporation was placed under provisional administration; or (b) if it is so decided by the court subsequently. In such instances, the administrator functions as liquidator (Art. 17). The liquidation is effected under the special provisions of Articles 18–24. By Royal Decree of December 22, 1956, the provisions of Law Decree 3562/1956 were also extended to partnerships. By virtue of Law 1386/1983, a special government agency was established with the purpose of undertaking the administration and reorganization of enterprises encountering severe financial problems. Among other possibilities, the above agency was authorized to proceed with the increase of company capital, either with fresh money or through capitalization of debts. The system was extensively used. Eventually, however, it ceased to operate as it was heavily contested on constitutional grounds, as well as on its compatibility with Community law. Law 1892/1990 introduced some new collective proceedings on which some of the provisions of previous laws, in particular Law Decree 3562/1956 and Law 1386/1983, apply. In particular, Article 44 Law 1892/1990 contains provisions for an out-of-bankruptcy agreement concluded by the debtor and its creditors. Such agreement provides for a collective settlement, consisting of a partial reduction of claims, postponement of their payment or both. For such collective settlement to be reached, creditors representing 60 per cent of claims, including 40 per cent of secured claims, as well as the majority of the debtor’s shareholders need to agree. The Court of Appeals ratifies the agreement reached. The ratification binds any dissenting creditor, including the State, with the exception of social security funds. Article 45 of Law 1892/1990 provides for the possible appointment of a mediator, who undertakes to assist the parties in reaching an agreement under Article 44. Articles 46–46A of Law 1892/1990 have introduced new procedures of ‘special liquidation’ aiming at selling the debtor undertaking as a going concern. Article 46 thereof organizes the sale on the pattern of a classic auction, but if the latter is unsuccessful, Law Decree 3562/1956 applies. Therefore, the auction is

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continuously repeated with a 10–20 per cent reduction of the starting price each time, until the undertaking is sold. Article 46A introduces a more complex procedure, conducted by a special liquidator, who is either a bank or a subsidiary thereof. This procedure consists of two stages: first, the court-appointed liquidator invites bidders to submit sealed offers. Once the offers are opened by a notary, the liquidator valuates them and makes recommendations to the creditors on the most favorable offer. The creditors may accept or reject the offer recommended by the liquidator by simple majority of the claims they represent; they can even reject all offers submitted. Depending on the outcome of the consultation with the creditors, the liquidator transfers the undertaking by notarial deed to the approved bidder; if not, the tender procedure is repeated. Possible outcomes of the special liquidation under Article 46A, if not successful, are also a court order for partial sale of the undertaking, or for free sale by the liquidator, or auction under Article 46, or even the closure of the liquidation proceedings under Article 46A. III.

COMMERCIAL PAPER (αξιόγραφα, axiografa)

The various categories of commercial paper are enumerated in Articles 68 and 76 of Law Decree of July 17/August 13, 1923 on special provisions on corporations. Under Article 68, the only commercial paper which may be issued to the bearer are shares and debentures of corporations and their dividend and interest coupons. By virtue of Article 5 of Law 5960/1933, checks may also be issued to the bearer. Under Article 76 of the same Law Decree, the following commercial paper may be issued to order: (a) money orders drawn by a merchant on a merchant; (b) IOUs issued by merchants for money, negotiable instruments and other fungible things; (c) bills of exchange, promissory notes and checks; (d) warehouse receipts; (e) bills of lading; (f) bottomry bonds; and (g) insurance policies. In this part, we will concentrate on: (a) bills of exchange, (b) promissory notes, (c) checks, (d) commercial money orders, (e) commercial IOUs, and (f) warehouse receipts. A.

BILLS OF EXCHANGE AND PROMISSORY NOTES (συναλλαγματικές, synallagmatikes; γραμμάτια εις διαταγήν, grammatia eis diatagin)

The above are governed by Law 5325/1932, by means of which the rules of the related Geneva Conventions of June 7, 1930,2 were introduced.

2. Convention providing a Uniform Law for Bills of Exchange and Promissory Notes; Convention for the Settlement of Certain Conflicts of Laws in connection with Bills of Exchange and Promissory Notes. These two Conventions were initially ratified by Law 5280/1931.

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A bill of exchange is an instrument made in writing by virtue of which the issuer (or drawer) orders another person (the drawee or the payor) to pay a sum certain of money at a certain time in a certain place to a certain person (the payee) or to his order. Such an instrument must contain (Art. 1): (a) the denomination ‘bill of exchange’; (b) the simple and unconditional order to pay a sum certain of money; (c) the name of the drawer; (d) the maturity day; (e) the place where payment is to be effected; (f) the name of the person to whom or to whose order payment must be effected (this being the reason why the bill may not be issued to the bearer); (g) the date and place of issuance; and (h) the signature of the drawer. If any of the above indications is lacking, the title is not valid as a bill of exchange. By means of conversion, however, it might be considered valid as a promise or as an acknowledgment of an obligation to pay. By way of exception to the invalidity: (a) if the indication of maturity is lacking, the bill is deemed payable on sight; (b) if the indication of the place of payment is lacking, the bill is deemed payable at the place indicated beside the name of the payor, this place being also deemed to be the place of domicile of the payor; (c) if the place of issuance is lacking, such place is deemed to be the one indicated beside the name of the drawer (Art. 2); (d) if the sum payable is written both in words and numerals and there is a discrepancy, the writing in words prevails; and (e) if the sum was written more than once in different numerals, the bill is valid for the smaller amount; the same applies if the sum is written more than once in words (Art. 6). The bill may be issued to the order of the drawer and may also be drawn on the drawer himself (Art. 3). In case the bill bears signatures of persons incapable of being obligated by it or bears false signatures or those of inexistent persons or which, for any other reason, may not create obligations for the signatories, the obligations of the other signatories remain valid (Art. 7). Whoever signs a bill as a representative of another person without authorization obligates himself (Art. 8). The drawer is liable both for acceptance of the bill and for payment; he may exonerate himself from liability for acceptance but not for payment (Art. 9). A bill on which an indication was left incomplete with the express or implied intention of the parties to be later completed becomes retroactively validated (i.e., as from its issuance) as soon as it is completed in conformity with such intention. However, if the indication lacking was completed in violation of the parties’ intention, the irregularity of such completion may be opposed to the holder only if he acquired the bill in bad faith or by gross negligence (Art. 10). Every bill may be transferred by endorsement, even if it was not issued to order; if, however, the drawer had added the words ‘not to order’ or any other equivalent indication, the incorporated claim is transferred by ordinary assignment, i.e. such transfer is subject to all defenses the payor had against the transferor (Art. 11). The endorser is liable both for acceptance and payment, but he can exonerate himself from both liabilities. If he prohibits a further endorsement, he is not liable to subsequent endorsees (Art. 15). The holder of a bill is deemed to be

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its lawful bearer (a ‘holder in due course’) if he bases his right on an uninterrupted chain of endorsements, even if intermediate endorsements or the last one are in blank. The chain is deemed to be uninterrupted if each endorser appears as the endorsee in the preceding endorsement. If the holder of a bill bases his right on an uninterrupted chain of endorsements, he may not be deprived of the document, even if it had been lost by the real owner, except if such holder had acquired it in bad faith or by gross negligence (Art. 16). Those sued under a bill may not oppose against the holder in due course defenses based on their personal relations with the drawer or with preceding holders, unless the holder, in acquiring the bill, had acted knowingly to the detriment of the obligor (Art. 17). Where the endorsement includes the words ‘value for cover’, ‘for collection’, ‘as attorney in fact’, or any other expression indicating a mere authorization to collect, the bearer may exercise all rights deriving therefrom, but any endorsement made by him is considered to be valid merely as an endorsement for collection. In such a case, only such defenses can be opposed against the holder as could have been opposed against his endorser. The assignment included in the endorsement for collection is not repealed in the event of the endorser’s death or his subsequent contractual incapacitation (Art. 18). Where the endorsement includes the words ‘value for security’ or ‘value for pledge’ or any other statement implying a pledge, the holder may exercise all rights deriving therefrom but any endorsement made by him is valid only as an endorsement ‘for collection’. Defenses based on the personal relations of the obligated persons to the endorser may not be opposed to the holder, unless the holder, upon receiving the bill, had acted knowingly to the detriment of the obligor (Art. 19). An endorsement made after maturity has the same effects as one preceding it; however, if an endorsement was made following protest or expiration of the term for protest, it has the effects of a mere assignment. An undated endorsement is prima facie deemed to have been made before lapse of the term for protest (Art. 20). In principle, the holder of a bill is free to present it to the drawee for acceptance up to its maturity (Art. 21). However, the drawer may stipulate in the bill that it may not be presented for acceptance at all (except where the bill is maturing at a fixed term after sight), or that it must be presented for acceptance prior to or after a certain time. Additionally, any endorser may stipulate that the bill has to be presented for acceptance, and may fix a certain time for such presentment, except if the drawer had marked it as ‘not to be presented for acceptance’ (Art. 22). Acceptance must be unconditional, but the drawee may restrict it to only a part of the sum for which the bill was issued. Any other modification of the contents of the bill by the acceptor is assimilated to a refusal of acceptance, provided, however, that the drawee is obligated anyhow in accordance with the terms of his acceptance, even if these modify the terms of the bill (Art. 26). Acceptance obligates the drawee to pay the bill at maturity. If payment is not made, the bearer, even if he is the drawer, has against the acceptor a direct action for the amount of the bill increased by costs and interests as of maturity (Art. 28). The payment of a bill may be guaranteed in favor of one or more or all the signatories, for the entire amount or part thereof, by a third party or by a person

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who has already signed it; the guaranty must be written on the instrument and be signed by the guarantor; the guarantor’s responsibility is the same as that of the persons in favor of whom the guaranty was given (Arts 30–32). The bill may be issued maturing at sight, at a certain term after sight, at a certain term from the day of issue, or at a certain date. If maturity is fixed in another way, or in successive partial maturities, the bill is null and void (Arts 33–37). The holder must present the bill for payment on the day of maturity or on one of the next two working days on penalty of losing his rights of recourse against all other parties except the drawee (Arts 38, 53). By paying the holder on maturity, the drawee is discharged except if in doing so he was acting in fraud or with gross negligence; he is bound to check the continuity of the endorsements, but not the validity of the signatures of the endorsers (Art. 40). If payment is not made at maturity, the holder has, in due course, recourse against the endorsers, the drawer and the other signatories. He has recourse even before maturity: (a) if the drawee refused acceptance in whole or in part; (b) if the drawee became bankrupt or insolvent; and (c) in case of bankruptcy of the drawer of a bill which was marked as ‘not to be accepted’. In order to acquire a right of recourse against all signatories except against the acceptor, the holder must make a protest before a notary (διαμαρτυρικό, diamartyriko). He is also bound to give a notice of dishonor to his own endorser and to the drawer, but this is not on penalty of losing his rights to recourse. By a clause written on the bill, the drawer, the endorsers and the guarantors may exempt the holder from making a protest. Such exemption clause, if written by the drawer, is effective against all signatories; if written by an endorser or a guarantor, it is effective only against such endorser or guarantor. Recourse can be exercised by single action against all signatories or by separate actions against one or more signatories without obligation to observe a certain priority. Any endorser or guarantor who paid the bill in recourse against him may exercise further recourse of his own against the persons (i.e. drawer, endorsers, guarantors) who preceded him in signing the bill (Arts 43–54). In case of alteration of the bill, the signatories prior to the alteration are liable in accordance with the initial text; the signatories after the alteration are liable in accordance with the altered text (Art. 69). Claims against the acceptor and his guarantor are barred three years after maturity. Claims against the drawer, the endorsers and their guarantors are barred one year from the date the protest was made and, if there was no obligation to make a protest, one year from maturity. Claims of endorsers who have paid the bill against the preceding endorsers, their guarantors and the drawer, are barred six months from the time they paid it or from the time they were sued to pay (Art. 70). Law 5325/1932 also contains provisions on intervention for payment and for acceptance of a bill (Arts 55–63), as well as on plurality of originals and copies of a bill (Arts 64–68). These provisions are obsolete and have no application in everyday practice. 2.

Promissory Notes

A promissory note differs from a bill of exchange in that there is no drawee, so the main obligor (payor) is the issuer himself; therefore, this commercial paper must

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contain the same indications as a bill except for the indication of the drawee (Art. 75). In accordance with Article 77 of Law 5325/1932, the provisions applying to bills are applicable to promissory notes, provided they are not inconsistent with their nature. Such necessary adaptations include the following: (a) inasmuch as there is no drawee, the issuer has the same responsibility as the acceptor of a bill (Art. 78 I); (b) in case of maturity at a certain term after sight, the instrument has to be presented to the issuer to be ‘visaed’ by him (in lieu of acceptance); (c) inasmuch as there is no acceptor, the provisions on acceptance by intervention (Arts 56–58) and recourse for refusal of acceptance (Art. 43) have no application; (d) if the indication of the place of payment is lacking, the note is payable at the place of its issuance (Art. 76 III); (e) inasmuch as the responsibility of the issuer is identical to that of an acceptor of a bill, claims against the issuer are barred three years after maturity. B.

CHECKS (τραπεζικές επιταγές, trapezikes epitages)

Checks are governed by Law 5960/1933 that is the Greek version of the Uniform Law for Checks of the March 19, 1931 Geneva Convention. Just like the bill of exchange, the check is an instrument in writing made by the drawer, the main differences from a bill being: (a) the drawee is always a bank, although a check issued abroad and not drawn on a bank is valid in Greece; (b) the check cannot be accepted by the drawee and any such acceptance is deemed not to have been written (Art. 4); (c) the check may be issued to the bearer (Art. 5); and (d) the check is always payable at sight; any other indication of maturity is deemed not to have been written (Art. 28 I). If payable in the country of issuance, the check must be presented for payment within eight days from the date of issuance; if payable in another country on the same continent, it has to be presented within 20 days, otherwise within 70 days; checks issued in Europe and payable in a country situated around the Mediterranean, or vice versa, are considered to be payable in the same continent (Art. 29). Revocation (countermand) of a check is valid only after lapse of the term for presentment; absent countermand, the payor may pay after lapse of the time for presentment (Art. 32). The check is not invalidated by the death or incapacitation of the drawer after its issuance (Art. 33). Crossed checks can be paid by the payor only to a banker or to a client of the payor; if the crossing is for a specific banker, the check can be paid only to that banker or to his client. A banker can acquire a crossed check only through a client of his or through another banker. A check can bear only two special crossings, one of which must be for collection through a clearinghouse. The banker or other payor not complying with the above provisions is liable to damages up to the amount of the check (Arts 37–39). The drawer, as well as the bearer of a check, may prohibit its payment in cash by writing on the check the indication ‘payable in account’ (πληρωτέα εις λογαριασμόν, plirotea eis logariasmon) or any similar indication; in such a case the check amount must be credited, deposited in an account or set off. Recourse claims of the bearer against the endorsers, the issuer and other liable parties are barred six months after lapse of the time for presentment of the check for payment. The actions of recourse of

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those liable for payment of a check against the other signatories who are liable to them are barred six months from the time they paid it or from the time they were sued (Art. 52). All other provisions of Law 5960/1933 are but a repetition of the corresponding provisions on bills of exchange. It has to be noted that issuing checks that bounce is a criminal offense and the issuer is punished with imprisonment and a fine upon complaint of the final bearer (Art.79). C.

COMMERCIAL MONEY ORDERS (εμπορικές εντολές πληρωμής, emporikes entoles pliromis)

Such money orders usually take the specific form of letters of credit (πιστωτικές επιστολές, pistotikes epistoles), i.e. letters issued by a bank addressed to its ‘correspondent’ agent (usually also a bank) requesting it to pay to the holder or at his order up to a certain amount of money, in full or in installments. Letters of credit are normally issued to persons traveling to other countries. In Greece, however, this method of financing travelers is not common in practice; it is replaced by traveler’s checks or common checks. This is why letters of credit are not regulated by statute. An overall regulation of commercial money orders is equally lacking, except for very few provisions included in Articles 77–79 of the Law Decree of July 17/August 13, 1923 relating, among others, to orders drawn by a merchant on a merchant. According to such provisions, an instrument issued to order is transferred by endorsement (Art. 77); the debtor may oppose to the legitimate holder of the instrument only defenses regarding the validity of his own statement contained in the instrument, which are apparent from the contents of the instrument, or which pertain to him directly against the holder (Art. 78). The debtor is bound to satisfy the claim only after he receives delivery of the instrument duly acquitted (Art. 79). Because of lack of sufficient specific provisions on such commercial paper, analogy leads to the application of Articles 876–887 CC relating to the order to pay or deliver (see Ch. 6, Section II T ). D.

COMMERCIAL IOUS (χρεωστικά ομόλογα εμπόρων, chreostika omologa emporon)

While commercial money orders are tripartite agreements, involving the assignor, the assigned debtor and the consignee, commercial IOUs, being promises, involve only two persons: the issuer and the consignee. They are distinguished from promissory notes, as the promise in commercial IOUs may not only be a promise for money but also a promise to give commercial paper or other fungible things; it may also be conditional or have successive maturities. A special type of commercial IOUs is bonds, which may be simple or convertible to (or exchangeable against) shares. Bonds are issued by corporations (ομολογίες ανωνύμων εταιριών, omologies anonymon etairion), and are governed by Articles 3A–3B of codified Law 2190/1920 on corporations and Law 3156/2003.

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WAREHOUSE RECEIPTS

Warehouse receipts are governed by Law Decree 3077/1954 on general warehouses (Arts 1, 27–44). They are negotiable and are issued by the warehouseman in connection with goods received for storage; they are delivered to the person who deposits the goods or to whose account they are deposited. They are drawn on model forms in triplicate, cut out of a book; the description of the stored goods and the name of the beneficiary are filled in. The stem stays with the warehouse; the first cut, called ‘deposit certificate’ (αποθετήριο, apothetirio), embodies the title of ownership on the stored goods and serves for proving and transferring such ownership by endorsing the certificate; the second cut, called ‘pawn certificate’ (ενεχυρόγραφο, enechyrografo), serves for constituting or transferring a pledge on the stored goods, again by endorsing the instrument. The provisions governing bills of exchange are applicable with respect to endorsement, legitimation of the holder, checking of legitimation, effects of endorsement and recourse claims (Art. 80 of the Law Decree of July 17/August 13, 1923; see above, Section III A 1). IV.

INDUSTRIAL PROPERTY (βιομηχανική ιδιοκτησία, viomichaniki idioktisia)

Greece has ratified the Paris International Convention of 1883 on the Protection of Industrial Property,3 as subsequently revised, so that in regard to nationals of other countries parties to the Convention, the provisions thereof are applicable. Matters covered by the Convention include: repression of unfair competition, trade names and trademarks, indications of origin, patents, utility models and industrial designs. In addition, most of the secondary Community law on various matters of industrial property and consumer protection has been implemented. A.

UNFAIR COMPETITION (αθέμιτος ανταγωνισμός, athemitos antagonismos)

The main statutory provisions on this subject are included in Law 146/1914 on unfair competition, as subsequently amended. It consists of a general prohibition under Article 1 and a series of specific prohibitions in other Articles. As stipulated under Article 1: ‘In commercial, industrial and agricultural transactions, any act which is opposed to morality is prohibited. The transgressor may be enjoined and sued for damages’. A provision so general may concur not only with specific provisions of the same act but also with provisions of other acts, such as the law on trademarks (see below, under B).

3. The Paris Convention as amended by the Stockholm Convention in 1967 was ratified by Law 213/1975, GG A 258.

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Nicholas A. Deloukas and Evanghelos Perakis Specific prohibitions include: (a) any misrepresentation concerning transactions under Article 1, made in public communications or announcements addressed to a larger circle of persons, in particular misstatements concerning the quality, source of origin, process of manufacturing, or pricing of goods or industrial activities, the manner or source of procurement, possession of awards or other honorable distinctions, the cause or aim of the sale, or the size of the available stock, if such statements are apt to give the impression of a particularly favorable offer; the transgressor may be enjoined and sued for damages (Art. 3); if such misrepresentations were made fraudulently, he is also subject to criminal prosecution (Art. 4); depictions or other devices apt to replace such misstatements are equally prohibited (Art. 5); (b) any public announcement of a sale of goods for the purpose of liquidation of a business or a branch thereof; such sale and announcement are allowed only subsequent to a court decision, only in case of actual and final termination of the activities of the entire business or of a branch thereof, and only for the goods of such branch, as well as in case of bankruptcy of such business provided, however, that seasonal rebates and their announcements are allowed by decisions of the Minister of Development, as provided by law; no other announcements for rebates are allowed; transgressors are subject to an action for refraining from such practice; they are also subject to damages and criminal prosecution (Arts 7–10); (c) denigration or disparaging of a competitor is prohibited under penalties; the transgressor may be enjoined and sued for damages (Arts 11–12); (d) use of a trade name, trademark, emblem or distinctive sign of which a third party is the legitimate holder are also prohibited; the transgressor is subject to civil and criminal prosecution and the court may order the removal and/or destruction of the injurious sign at the request of the prejudiced party (Arts 13–15; see below, under B 4); and (e) disclosure of business secrets by an employee of such business for competition purposes or for prejudicing the business is prohibited under penalties and liability for damages; the same prohibition applies to a third party that obtained knowledge of such secrets through an employee of the business (Art. 16) and to any one who discloses to third parties, or makes unauthorized use of, technical data or of particular drawings, patterns, samples or instructions which were entrusted to him in the course of business (Arts 16–18). Claims under this act also justify injunctive relief (Art. 20).

B.

TRADE NAMES AND TRADEMARKS

1.

Trade Names

A trade name (εμπορική επωνυμία, emporiki eponymia) is the name used by a merchant in his commercial activities. Normally, if the merchant is a natural

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person, his trade name will coincide with his name as a private individual (i.e. name and surname). It is possible, however, for a merchant acquiring a business in its entirety, by contract or succession, to continue using the trade name of his predecessor for such business, provided he adds a distinctive sign. Thus, for example, if John Ioannides acquires a business formerly owned by George Georgiades, he may continue conducting such business under the name George Georgiades by adding, e.g., the words ‘successor J. loannides’. If the business is conducted under the form of a general partnership (see Ch. 12, Section IV), the trade name must be formed by the names of the partners (Art. 21 LC). If the name of only one or some of the partners is used, then the words ‘and Co’. or a similar indication must be added in order to make clear that there are more partners than those mentioned in the name of the business. In case of a limited partnership (see Ch. 12, Section V), only the names of partners whose liability is unlimited may form the trade name (Art. 25 LC). The trade name of a close corporation (see Ch. 12, Section III) can be formed either by the names of the partners or the designation of the kind of trade the company engages in, or both. The trade name of a corporation (see Ch. 12, Section II) must be formed by indicating its trade; the name of a founder or of another natural person or the name of another commercial association may be added, but in any case the words ‘corporation’ must be added (Art. 5 of Law 2190/1920). 2.

Distinctive Titles

Distinctive title (διακριτικός τίτλος, diakritikos titlos) or emblem (έμβλημα, emvlima) is a name or sign used by a merchant or business, in order to distinguish it for quick reference. Such distinctive title or emblem is affixed on the facade of the shop, printed on the stationery, in advertisements, etc. of such business. 3.

Distinctive Signs

A merchant or a business may also use distinctive signs (διακριτικά γνωρίσματα, diakritika gnorismata) of another nature, e.g. the special shape of products or their wrapping (such as the ball-shaped soaps of Pear’s or the fancy-shaped bottles of perfumes) or the shape of the shop itself (such as the shape of a cave or of a red windmill). 4.

Protection

Trade names, distinctive titles and distinctive signs or shapes (διασχηματισμός, diaschimatismos) of goods etc. are protected by virtue of Articles 13 and 14 of Law 146/1914 on unfair competition. Under Article 13, Whoever uses in commercial transactions a name, a trade name or a distinctive sign of a shop or of an industrial business or of printed matter in a way that may create confusion with the name, trade name or distinctive sign lawfully

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By virtue of Article 14 I, intentional use of such a trade name or distinctive sign belonging to another is punishable by imprisonment of up to six months and/or a fine. In accordance with Article 14 II, the provisions of Articles 13 and 14 are also applicable in instances where the use of such other’s trade name and/or distinctive sign is done with minor changes, so that by such use confusion might possibly occur. 5.

Trademarks (σήματα, simata)

Trademarks are governed by Law 2239/1994, as amended and adopted in compliance with Directive 89/104.4 In accordance with Article 1, trademark is any sign capable of being represented graphically and capable of distinguishing the goods or services of one undertaking from those of other undertakings, such as words, personal names, designs, letters, numerals, sounds, the shape of goods or the shape of their packaging. The title of a newspaper or a periodical is also considered as trademark. Under Article 2, the right to exclusive use of a trademark is acquired only through its registration in accordance with the provisions of Law 2239/1994, although unregistered marks can be protected under the general rules of Law 146/1914 on unfair competition. Article 3 enumerates the signs that may not be accepted for registration. These are mainly: (a) signs not capable of constituting a trademark according to the above definition; (b) signs devoid of any distinctive character; (c) trademarks exclusively consisting of signs or indications that may serve, in the trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or time of production of the goods or of the rendering of the service, or other characteristics of the goods; (d) signs or indications that have become customary in the current language or in the bona fide and established practices of the trade; (e) signs exclusively consisting of the shape resulting from the nature of the goods themselves, or the shape of goods that is necessary to obtain a technical result, or the shape that gives substantial value to the goods; (f) trademarks that are contrary to public policy or accepted principles of morality; (g) trademarks of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or service. Trademarks consisting of the emblems and symbols of the Greek State and the states-parties to the

4. First Council Directive 89/104 of December 21, 1988 to approximate the laws of the Member States relating to trademarks, OJ L 40/1–7, 1989.

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Paris Convention are not capable of being registered, just as those that have been registered in bad faith. Incapable of registration is also a trademark: (a) when it is identical with an earlier trademark, and the goods or services for which the trademark is applied or registered are identical to the goods or services for which the earlier trademark is protected; (b) when, because of its identity with, or similarity to the earlier trademark and the identity or similarity of the goods or services covered by the trademarks, there exists a likelihood of confusion on the part of the public, including the likelihood of association with the earlier trademark; and (c) when the previous trademark has a reputation and the use of the subsequent trademark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or reputation of the earlier trademark. A trademark is registered following a petition filed with the competent section of the Ministry of Development (Art. 6). Its acceptance is made by the three-member Administrative Committee of Trademarks (Διοικητική Επιτροπή Σημάτων, Dioikitiki Epitropi Simaton), meeting in public session, and before which the applicant can appear and file memoranda (Art. 8). Third parties having a legitimate interest can also appear before the Committee. The latter can take into account all conditions for the acceptance of the trademark, including the ‘relative’ reasons of non-acceptance (similarity with an earlier trademark, etc.). Decisions of the Committee can be set aside by the initiative of third parties having a legitimate interest provided they have not intervened in the initial hearing (Art.10). An appeal against the decisions of the Committee is also possible before the administrative court of first instance, and then before the administrative court of appeal and ultimately before the Council of State (Art. 13). A registered trademark gives its owner the exclusive right of use and prevention of all third parties not having his consent from using it in the course of trade (Art. 18). It can also be licensed to third parties (Art. 16). The right in a registered trademark lasts for ten years and can be renewed indefinitely through the filing of a petition for renewal during the last year of protection (Art. 21); such right is transferable by succession and by contract, with or without the business for the benefit of which the trademark was registered (Art. 22). Whoever uses, counterfeits or imitates a trademark belonging to another may be sued before the civil courts for refraining from such use and/or for damages. The claim for damages is barred three years from the end of the year during which the violation occurred. The claim for refraining from such use may be accompanied by a petition to the court to order interim measures (Art. 26). Penalties of imprisonment and/or fine are imposed on those intentionally violating the provisions of this law (Art. 28). A registered trademark may be deleted following a decision of the Administrative Committee of Trademarks (or, following appeal, by the administrative courts) at the request of a person having a legitimate interest thereto, in any of the following instances: (a) if the beneficiary fails to use it in a substantial way within five years from registration; (b) the beneficiary’s business has ceased to operate for five years at least; (c) if the trademark became of common use; (d) if, as a result

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of the manner in which the trademark is used by the beneficiary or with the consent of the latter, the registered trademark is likely to cause confusion; and (e) if, in accordance with the provisions of the law, the trademark should not have been accepted for registration in the first place. Deletion becomes effective as from the date when the decision of the Committee or the judgment of the court pronouncing the deletion becomes final and irrevocable (Art. 17). Decisions pronouncing registration or deletion of a trademark are published in a special section of the Government Gazette. Greece has also ratified the Protocol of Madrid concerning the international registration of trademarks (Law 2783/2000, GG A 147). It should also be noted that a new bill on trademarks is under preparation, and is likely to be adopted by Parliament in 2007. C.

INDICATIONS OF SOURCE AND APPELLATIONS OF ORIGIN (ενδείξεις προελεύσεως, endeixeis proeleuseos)

There are some general provisions applicable to all indications of origin, and specific ones regarding particular products. General provisions are those of Articles 3–5 of Law 146/1914 on unfair competition, prohibiting any misrepresentation made in public and addressed to a broad circle of people, especially with regard to the provenance of a product, which may create the impression of a particularly favorable offer. The transgressor may be sued for refraining from such misrepresentations and for damages; he is also criminally liable if he made the misrepresentations with the intention to mislead the consumers. Denominations used in trade transactions to designate species of goods or industrial activities and not the geographic provenance of such goods or services are not subject to the above prohibitions. As a general provision may also be regarded the clause of Article 1 (see above, under A), as well as Article 3 of Law 2239/1994 on trademarks, by virtue of which indications of geographical provenance may not be registered as trademarks (see above, under B 5). Specific provisions are included in laws and regulations concerning particular products (e.g., Royal Decree 423/1970 on recognition of appellations of origin of wines, olive oil and raisins; Presidential Decree 318/1983 on quality testing for awarding quality marks and certificates). D.

PATENTS (διπλώματα ευρεσιτεχνίας, diplomata euresitechnias)

The basic statute on patents is Law 1733/1987 on transfer of technology, inventions and technological innovation, modeled after the European Patent Convention of 1973. Patents are granted to new contrivances involving an inventive step, which are susceptible of industrial application. The invention may refer to a product, method or industrial application. The following are not considered as inventions: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; and (c)

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schemes, rules and methods for performing mental acts, for playing games, or for exercising economic activities and computer programs. Patents are not granted: (a) for inventions offending the public order or morality; (b) for plant varieties or animal species; and (c) for biological processes for the production of plants or animals, except for microbiological processes and the products thereof (Art. 5). Entitled to acquire a patent is the inventor or the beneficiary of a serviceinvention and their successors. Whoever applies for a patent is prima facie considered as the inventor. If more than one person jointly made an invention, absent contrary agreement, the invention belongs to all jointly and each one may freely transfer his share. If more than one person made an invention independently of each other, the right on the invention belongs to the one who filed the application for the patent first or who enjoys international priority as provided in Article 9. If a third party filed the application for the patent without authority, the owner of the invention may initiate legal proceedings against the infringer for the recognition of his inherent rights. The action is barred two years after registration of the patent, except where the holder of the patent was aware of the right of the challenger at the time the patent was granted or transferred. As of registration of the final decision allowing such action, all licenses and any other rights conceded on the patent are null and void. However, the defeated party and other persons who were exploiting the invention in good faith or had proceeded with the necessary preparations for exploiting the invention may request the court to allow them nonexclusive rights of exploitation for a reasonable time. Any disputes are resolved by the court (Art. 6). Authority for granting patents belongs to the Industrial Property Organization (Οργανισμός Βιομηχανικής Ιδιοκτησίας, Organismos Viomichanikis Idioktisias; OVI) supervised by the Ministry of Development. To the appropriate application are attached: the drawings referred to in the claims or in the description, a summary of the invention, the explanations and the legitimation documents, if the petitioner is not the inventor. The petition may relate to one single invention or to more inventions that must, however, be connected so as to constitute a unity. The petition is granted if it meets the above requirements (Art. 7). The petition and the documents attached thereto are made public on the day of granting the patent but no later than 18 months from the date of registration or of priority. As soon as the petition is made public, anyone may request information and copies of the petition, the description, the drawings and any related documents (Art. 8). If an application for a patent has properly been filed in a foreign country, the beneficiary enjoys priority for the same application in Greece within 12 months from its initial filing abroad (Art. 9). The patent confers to its holder the exclusive right to productively exploit the invention (Art. 10). The term of the patent is for 20 years from the date of filing of the application (Art. 11). The right to acquire a patent and the patent itself are transferable contractually or by means of succession. The holder of a patent may grant licenses to third parties. Such licenses, absent contrary agreement, are not transferable by either contract or succession (Art. 12). Non-contractual licenses may be awarded by the court to third parties without consent of the holder under the following joint conditions: (a) after lapse

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of three years from granting the patent, or four years after the filing of the application; (b) if the invention has not been productively exploited in Greece, or if production was not able to satisfy the demand; and (c) if the third party is in the position to productively exploit the invention and has notified the patentee one month in advance of his intention to initiate proceedings for the granting of a non-contractual license. The grantee of a patent may request the court to award him a non-contractual license on an earlier patent, provided that: (a) his invention relates to the earlier patent; (b) the exploitation of his patent is not possible without infringing the earlier patent; and (c) his invention constitutes a significant progress in comparison with the invention to which the earlier patent refers. After the award of such license, the holder of the earlier patent may ask the granting of a license on the posterior patent (Art. 13). A license can be granted to public bodies for reasons of public health or national defense, provided that the invention has not been productively exploited in Greece or the production was insufficient to cover the local demand (Art. 14). A patent is declared by court order null and void if: (a) the patentee is not the inventor nor his assignee or grantee; (b) the invention is not patentable; (c) the description of the invention does not allow a qualified person to apply the invention; or (d) the object of the patent exceeds the protection as requested in the application. If the annulment refers only to a part of the invention, the patent is restricted accordingly (Art. 15). The action for infringement of a patent is barred five years after the holder received notice of either the infringement or damage and the infringer, and in any event after 20 years from infringement (Art. 17). Article 21 provides for the transfer of technology (know-how, etc.). Additionally, Greece has ratified, together with the respective Regulations, the European Patent Convention (Law 1607/1986, GG A 85), the European Community Patent Agreement (Law 2029/1992, GG A 55) and the Washington Treaty on Patents of 1970 as amended in 1979 and 1984 (Law 1883/1990, GG A 45). E.

UTILITY MODELS AND INDUSTRIAL DESIGNS

Utility Models (υποδείγματα χρησιμότητας, ypodeigmata chrisimotitas), as ‘small inventions’, are protected in Greece under Article 10 of Law 1733/1987 (see above, under D). Certificates for utility models are granted for three-dimensional objects having a specific form and shape, which are capable of providing a solution to a technical problem. The above certificate is granted by the OVI and is valid for seven years. Industrial designs (βιομηχανικά σχέδια και υποδείγματα, viomichanika schedia kai ypodeigmata) are governed by Law 2417/1996 and Presidential Decree 259/1997, adopted in accordance with Directive 98/71.5 ‘Design’ means ‘the appearance of the whole or part of a product resulting from the features of, in 5.

Directive 98/71 of the European Parliament and of the Council of October 13, 1998 on the legal protection of designs, OJ L 289/28–35, 1998.

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particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation.’ A certificate is granted for the protection of the design by OVI. Such protection lasts five years. V.

INTELLECTUAL PROPERTY (πνευματική ιδιοκτησία, pneumatiki idioktisia)

A.

THE RIGHTS OF THE AUTHOR

‘Copyright’ in Greek legislation has to be understood in the Continental sense (the author’s right, droit d’auteur). Greek law is adequately protecting intellectual property and connected rights. In fact, Greece has been one of the first countries to implement the ‘Infosoc’ Directive6 (Law 3057/2002). Greece has also ratified almost all international conventions concerning copyright and related rights, such as the Berne Convention (Paris Act, Law 100/75, GG A 162), the Rome Convention protecting performers, producers of phonograms and broadcasters (Law 2054/1992, GG A 104), the TRIPS Agreement (Law 2290/1995, GG A 28), the Geneva Copyright Treaty (Law Decree 4254/1962, GG A 166) and the WIPO Performances and Phonograms Treaty (Law 3183/2003, GG A 227). The main statute dedicated to intellectual property is Law 2121/1993. Article 1 expressly provides that authors have the right of copyright, which includes two individual rights – the moral and the economic right. Of these, the moral right is of a personal character, its purpose being the protection of the personal connection between the author and his work, while the economic right has a financial value and is capable of exploitation. Both rights are described as ‘exclusive’ and ‘absolute’, and include the rights listed indicatively in Articles 3 (for the economic right) and 4 (for the moral right). As an ‘absolute’ right, copyright is enforceable against any third party and allows the author to take action against such party for any infringement; as an ‘exclusive right’, it gives the author direct and exclusive power over his work, i.e. only he can permit or prohibit its exploitation, or the negotiation of the terms of such exploitation. Article 2 contains an indicative enumeration of intellectual creations considered as ‘works’, which may thus be the subject matter of the author’s right. According to Article 2 I, the term ‘work’ designates any ‘original intellectual, literary, artistic or scientific creation expressed in any form,’ such as texts, musical compositions, dramatic works, choreographies and pantomimes, audiovisual works, works of fine art, works of architecture, works of applied art, illustrations, maps, etc. Translations, adaptations, etc. are also considered to be ‘works’. Article 2 III refers in particular to computer programs. In accordance with Directive

6.

Directive 2001/29 of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society, OJ L 167/10–19, 2001.

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91/2507 (see below, under C in f.), such programs and their preparatory design material are protected as literary works. Protection is granted to every form of expression of a program. However, ideas and principles, which underlie any element of a computer program, including its interfaces, are not protected under Law 2121/1993. Articles 3 and 4 contain indicative lists of powers conferred upon the author. The ‘economic’ powers, as listed in Article 3, include the right to permit or prohibit: (a) fixation and direct or indirect, temporary or permanent reproduction of the work by any means, and in any form, in whole or in part; (b) translation of the work; (c) arrangement, adaptation and alteration thereof; (d) distribution of the original or copies thereof; (e) rental or public lending; (f) public performance; (g) broadcasting or re-broadcasting to the public by radio or TV, by wireless means or cable or any kind of wire or any other means or by satellite; (h) communication to the public of the work by any means, including making the work available to the public in such a way that members of the public may access this work from a place and at a time individually chosen by them; and (i) the import of copies of the work produced without the creator’s consent or the import of copies from a country outside the EU, when the right over such imports had been retained by the author through contract. Economic rights may be transferred between living persons or mortis causa (Art. 12 I). ‘Moral’ rights, listed in Article 4, include the right of divulgation, the right of paternity of the work and the right of integrity. They are reinforced by two new rights available to the author: the right of access to the work and the right of rescission. It should be noted that Greek legislation always recognized the moral right that safeguards the personal connection between the author and his work. Protection of moral rights is an issue of fundamental importance in the context of information society, in which there is a danger of modification, distortion and mutilation of protected works and performances. B.

TRANSFER AND LICENSES

Law 2121/1993 contains some general provisions on the transfer, exploitation, and exercise of the economic right. Specifically, transfer of the economic right is possible, whereas the moral right is non-transferable. There are some rules, however, which restrict the contractual freedom of the parties, in order to protect the author from the economically more powerful counterparty. Thus, the law requires the written form as a condition of validity of all transfers or licenses (Art. 14) and lays down some interpretative rules restricting the licenses and means of exploitation (Art. 15). For example, unless the parties have agreed otherwise, the license has a five-year duration and applies only in the country where the contract was concluded. The law also introduces an obligation of the licensee to present the work to the public within a reasonable time and establishes a per centage fee as a principle, which applies to most contracts, when in the nature of things another form of fee is appropriate (Art. 32). 7. Council Directive 91/250 of May 14, 1991 on the legal protection of computer programs, OJ L 122/42–46, 1991.

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Of particular importance is Article 13 IV, according to which the exploitation contract may neither include all future works of the author nor may it be deemed to refer to methods of exploitation that were not known when the contract was concluded. The purpose of the latter provision is to prohibit transfer of the right for uses that did not exist or which were unknown when the parties entered into their contract. For example, a contract for a printed publication drawn up some years ago cannot be deemed to include new methods of exploitation of the work such as reproduction on CD-ROM or CD-i. C.

LIMITATIONS

Copyright has a limited duration: following lapse of a certain length of time prescribed by law, the work becomes common property; it belongs to the public domain and may freely be the object of use and exploitation. Article 29 I, as amended, follows the trend towards the lengthening of the term of protection and stipulates that copyright lasts for the duration of the author’s life and for 70 years following his death, calculated from the 1st January of the year after the author’s death. The duration of protection is valuable for economic and moral rights. However, as far as moral rights are concerned, the law provides that after the expiry of the duration of copyright protection, the state, represented by the Minister of Culture, may exercise the rights relating to the acknowledgement of the author’s paternity and the rights relating to the protection of the integrity of the work. The legislation contains specific limitations on the economic right with regard to its content and extent (Art. 18). These limitations are justified on grounds of social policy, research or education, and aim at protecting society as a whole. A reflection of these considerations is mirrored in the provisions concerning use of the work for the purpose of informing the public (Art. 25), reproduction for teaching purposes (Art. 21) or in order to meet other educational needs (Art. 20 I), reproduction for judicial or administrative purposes (Art. 24), quotation of extracts with a view to the advancement of science and letters (Art. 19), and public performance on special occasions (Art. 27). Article 28A contains provisions concerning reproduction for the benefit of blinds and deaf-mute, while Article 28B concerns temporary acts of reproduction. Specific uses of computer programs are allowed by Articles 42–43 in conformity with Directive 91/250 (see above, under A). Reproduction for private use is dealt with in Article 18. This provision, applying to analogue and digital reproduction, recognizes to the author and to certain holders of related rights an equitable remuneration if use of technical media is made for the free reproduction of the work. D.

RELATED RIGHTS

Law 2121/1993 also provides for the protection of related (neighboring) rights (συγγενικά δικαιώματα, syngenika dikaiomata). Therefore performers, producers of sound or visual or audiovisual recordings (phonogram producers and producers

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of audiovisual works), broadcasting organizations and publishers of printed matters (Arts 46–53) are protected. The law also contains provisions on related rights concerning the term of protection (Art. 52), the form of authorizations, limitations, collective administration of the rights (Art. 54) and the rule of safeguarding copyright (Art. 53). E.

ENFORCEMENT

In the matter of enforcement, Law 2121/1993 provides for the protection of authors’ rights and related rights by preventive measures and civil and criminal sanctions. According to the specific provision of Article 64 combined with Articles 687 I and 691 II CCiv.P, provisional measures (see Ch. 16, Section X D) in the form of injunction inaudita altera parte can be ordered under the conditions set out in the above Article 64. The author or the holder of related rights is also entitled to recover damages in an amount not less than twice the legally required or the normally payable remuneration for the particular form of exploitation, which the infringing party has effected without license. Instead of seeking damages, the holder may claim the profit that the infringer has made from the unauthorized use (Art. 65 II, III). The law also introduces criminal sanctions that apply against all acts constituting infringement of copyright or related rights (Art. 66 I, II). VI.

ANTITRUST LAW

Specific antitrust legislation was introduced for the first time by Law 703/1977 on the Control of Monopolies and Oligopolies and the Protection of Free Competition (subsequently amended, most recently by Law 3373/2005). The Hellenic Competition Commission (Επιτροπή Ανταγωνισμού, Epitropi Antagonismou; HCC), an independent administrative authority, has the power to apply the said law. Articles 1 and 2 thereof are similar to Articles 81 and 82 of the EC Treaty, whereas its amendments have also been in conformity with the provisions of pertinent Community regulations (e.g., Law 3373/2005 with Regulation 1/20038). Article 1 prohibits cartels in almost the same manner as Article 81 of the EC Treaty. As cartels are meant agreements between undertakings, decisions by associations of undertakings and concerted practices, which have as their object or effect to prevent, restrict or distort competition. An indicative list is provided in Article 1: prohibited ‘in particular’ are agreements, etc. which consist in price fixing, the limitation or control of production, distribution, technical development or investment, market sharing, the application of unequal conditions to equivalent transactions, and the conclusion of contracts on the condition that the other party accepts additional supplies that, either by their nature or according to 8. Council Regulation No. 1/2003 of December 16, 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1/1–25, 2003.

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commercial usage, have no connection with the subject of such contracts (tying). Agreements and decisions made in violation of the prohibition are null and void. However, a cartel may be exempted from the prohibition by decision of the HCC if the conditions of Article 1 III are met, and in particular if: (a) they contribute to the improvement of production or distribution of goods or to the promotion of technical or economic progress, while allowing consumers a fair share of the benefit deriving therefrom; (b) they do not impose to the undertakings concerned restrictions beyond those which are absolutely necessary for attaining the above objectives; and (c) they do not enable such undertakings to eliminate competition with respect to a substantial part of the market concerned. It should be noted that according to Article 8A, the Minister of Development may, with the concurring opinion of the HCC, issue decisions for the block exemption of practices according to Article 1 III or decisions determining categories or types of practices falling outside the ambit of Article 1 I. Article 2 prohibits the abusive exploitation of a dominant position by one or more undertakings. The abuse may ‘in particular’ consist of an imposition of unfair prices or other trading conditions, limiting the production, the market or technical development to the detriment of consumers, discrimination, and tying. Here again, the list is indicative. The novel provision of Article 2A (added by Law 3373/2005) prohibits the abuse of economic dependence. The latter is defined as the relation of economic dependence exercised by an undertaking over another (a customer or supplier), even with regard to a particular kind of products or services, where the latter has no equivalent alternative. The abusive exploitation of a relation of economic dependence may consist in particular in imposing arbitrary trading conditions, applying discriminative treatment, or in the sudden and unjustified termination of long-lasting commercial relations. The prohibition of cartels and the abuse of dominant position or economic dependence is not dependent upon any previous ruling by the HCC (Art. 3). Control of concentrations is organized in Articles 4–4F. A concentration (usually a merger) of undertakings neither comes under the prohibition of Articles 1 I and 2, nor is it prohibited or controlled in principle, unless it is important and likely to have an adverse effect on competition. According to Article 4A, concentration exists when: (a) two or more, previously independent, undertakings merge in any way, (b) one or more persons, who already control at least one undertaking, or when one or more undertakings acquire, directly or indirectly, control of the whole or parts of one or more other undertakings. Such control derives from rights, contracts or other means, which either on their own, or jointly, taking also into account the relevant factual or legal context, provide the possibility to exercise decisive influence on the activities of an undertaking, and in particular, from: (a) ownership or usufruct rights on the whole or part of the assets of the undertaking; or (b) rights or contracts providing the power to exercise decisive influence over the composition, conferences or decisions of the organs of an undertaking. Control is acquired by the persons or undertakings that: (a) are the subjects or holders of the rights according to these contracts; or (b) without being subjects or

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holders of the rights according to these contracts, they are entitled to exercise the rights drawn therefrom. The creation of a joint undertaking permanently fulfilling all the functions of an autonomous economic entity is considered to be a concentration within the meaning of Article 4. To the extent that the creation of a joint undertaking has as its object or effect the coordination of the competitive behavior of undertakings remaining independent, this coordination is assessed according to the criteria set forth in Article 1 I, III. In the course of such assessment, the HCC takes into account, in particular: (a) whether two or more parent undertakings exercise, to a significant extent, activities in the same market as the joint undertaking or in a market upstream, downstream or closely related to that of the joint undertaking; and (b) whether the coordination deriving directly from the creation of the joint undertaking provides to the participating undertakings the possibility to eliminate competition in a significant part of their markets. Article 4 is followed by Articles 4A–4F regulating issues of assessment and notification of concentrations. By virtue of Article 4A (post-merger notification), all concentrations of undertakings must be reported to the HCC within a month, except when the market share of the products or services concerned, in the national market or a significant part thereof, represents no more than 10 per cent of the overall turnover of the substitutable products or services, or the combined aggregate turnover of the undertakings concerned does not exceed in the national market EUR 15 million. Articles 4B et seq. (prior notification) subject to preventive control concentrations of undertakings which may impede, restrict or falsify competition in the whole or in part of the national market, particularly by creating or furthering a dominant position. According to Article 4B, every concentration must be notified to the HCC within ten working days from the relevant agreement, but before it is realized, where the combined aggregate turnover within the world market amounts to EUR 150 million and the aggregate turnover of each of at least two of the undertakings concerned exceeds EUR 15 million in the national market. Article 5 of Law 703/1977, as amended by Law 3373/2005, has introduced the possibility of a regulatory intervention in specific sectors of the economy: upon request by the Minister of Development or ex officio, the HCC examines a specific sector of the national economy and if conditions for effective competition are not present, and the application of Articles 1, 2, 2A and 4 et seq. is not sufficient for the creation of such conditions, the HCC may, by virtue of a motivated decision, take any absolutely necessary regulatory measure of conduct or structure for the creation of conditions towards an effective competition in the said sector. To that effect, the HCC notifies, publishes and submits to public consultation its opinion. Following completion of that procedure, the HCC may announce and put in public consultation the necessary measures of structure or conduct for the creation of conditions for effective competition (e.g., compliance with the principle of transparency, non-discrimination, accounting separation, cost-orientation). After the assessment of the results of such consultation, the HCC imposes, by virtue of a decision, the said measures of conduct or structure. The Minister of Development may, by virtue of a motivated decision, cancel or modify such measures on the basis of reasons of social policy, national economy or public interest. Within one year, the HCC initiates a procedure of re-examination of the relevant sector

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and evaluates whether the conditions for effective competition have been restored or whether it is necessary to modify the measures, as appropriate. The powers of the HCC in case of infringements of the law are stated mainly in Article 9. If, upon investigation effected either ex officio or upon complaint or request made by the Minister of Development, the HCC finds that an infringement of Articles 1 I, 2, 2A and 5 or Articles 81 and 82 of the EC Treaty has taken place, it may, by virtue of a decision, require the undertakings concerned to put an end to such infringement and refrain from committing it again in the future, accept the commitments to end the infringement made by the undertakings concerned, impose measures of conduct or structure, address recommendations, threaten to impose a fine or penalty in case of continuation or repetition of the infringement, or impose a fine on the undertakings that have committed the infringement. The fine may not exceed 15 per cent of the gross profits of the undertaking in the financial year when the infringement took place or the preceding financial year. In urgent cases and in order to prevent an imminent danger of irreparable damage to the public interest, the HCC has the exclusive competence to take provisional measures in case of a presumed infringement of Articles 1, 2, 2A and 5 or Articles 81 and 82 of the EC Treaty. Article 9 IV, introduced by Law 3373/2005, empowers the HCC to issue a ‘Leniency’ Program. In 2006, the HCC accordingly adopted a decision determining the conditions for immunity from fines or the reduction of fines imposed to undertakings contributing to the investigation of horizontal collusive practices prohibited by Law 703/1977. Additionally, Article 11 provides for a negative clearance procedure. According to Article 14, the decisions of the HCC and the Minister of Development (Art. 4c) may be challenged before the Athens Administrative Court of Appeals within 60 days from notification thereof. The practices referred to in Article 1 I must be notified to the HCC by the undertakings concerned within 30 days (Art. 21). Any natural person or legal entity is entitled to file a complaint regarding the infringement of the provisions of Articles 1, 2, 2A and 5 X, as well as of Articles 81 and 82 of the EC Treaty, whilst state officials and employees in the public sector are required to notify any relevant information to the HCC (Art. 24). The HCC is entitled to request information necessary for the implementation of Law 703/1977 from natural persons, legal entities and authorities, whereas it also possesses extensive investigative powers, similar to those of the European Commission, including the examination of all books and records kept by undertakings, investigations in the premises thereof (also in the homes of the undertakings’ directors), administering oaths, etc. (Arts 25, 26). VII.

BANKING LAW

A.

THE BANKING SYSTEM

Banks or ‘credit institutions’ (πιστωτικά ιδρύματα, pistotika idrymata) are governed by legislation that, to a large extent, was adopted in conformity with Community rules. A basic enactment is Law 5076/1931 on corporations and banks, as

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subsequently amended, but its rules have been overtaken by more recent legislation, in particular Law 2076/1992 on credit institutions, which incorporates most of the Community legislation on credit institutions. According to Article 2 of Law 2076/1992, ‘[c]redit institutions are undertakings, the activity of which is to accept deposits and to grant credits, or undertakings of electronic money.’ Since 2001, however, banks no longer have monopoly over this activity: other undertakings can also be entitled to provide credit, if they have authorization by the Bank of Greece. Credit institutions may be constituted and operative only in the form of a corporation with minimum capital of EUR 18 million, following authorization from the Bank of Greece (Art. 11 of Law 5076/1931; Art. 5 of Law 2076/1992). An exception to this rule concerns cooperatives, which may also be authorized to conduct banking activities. ‘Financial institutions’ are another kind of institution provided by Law 2076/1992: these are undertakings performing many of the functions of a credit institution but, unlike the latter, they are not allowed to accept deposits. Banks may not engage professionally in a trade or industry for their own account and may not grant to the same person or entity credit for amounts exceeding a certain ceiling, which is determined from time to time; banks may not participate in other businesses for amounts exceeding one-fifth of their capital; they are not allowed to grant credit of any kind whatsoever to members of their board of directors without sufficient real security, except by special decision of the general meeting of shareholders (Art. 16 of Law 5076/1931). Greek credit institutions are subject to the supervision of the Bank of Greece in what concerns their constitution and operation. The latter extends to their solvency, the adequacy of their own funds, their exposures, as well as other prudential measures. Supervision is also exercised on a consolidated basis. Supervision of banks includes the possibility granted by the law to the Bank of Greece to withdraw a bank’s authorization and to set it under liquidation or to appoint a commissioner. This can happen under certain circumstances provided by the law, including cases where the bank has insufficient own funds, infringes the law or is unable to satisfy its creditors. The appointment of a commissioner can also take place if the board of directors is invalidly constituted or cannot operate. When a bank is put under liquidation by the Bank of Greece or when it is insolvent, a liquidator is appointed. Such liquidation precludes ordinary bankruptcy proceedings. Special provisions have been enacted for annual accounts (Law 2190/1920) and mergers of banks (Law 2515/1997), as well as money laundering (Law 3424/2005) and deposit-guarantee schemes (Law 2832/2000). Directive 2001/249 was also recently implemented by Law 3458/2006. Therefore, any reorganization or liquidation measures taken in Greece are recognized in other EU Member States and vice-versa. Additionally, a Code of Banking Ethics was adopted in 1997 by almost all banking institutions operating in Greece. Its purpose is ‘[t]o establish standards of good banking practice, as these have evolved from customary law and internationally accepted principles of conduct.’ Foreign credit institutions 9. Directive 2001/24 of the European Parliament and of the Council of April 4, 2001 on the reorganization and winding up of credit institutions, OJ L 125/15–23, 2001.

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operating in Greece are generally subject to the supervision by the authorities of their country of origin (‘home control’), if this is an EU member state. The operation in Greece of other (non-EU) credit institutions is allowed and supervised by the Bank of Greece. Banking secrecy for deposits of any kind is provided by Law Decree 1059/1971. However, Areios Pagos held, after hesitation, that creditors are not prevented from attaching accounts.10 Law 2915/2001 positively specified that creditors are able to attach bank accounts. B.

PRIVATE BANKING LAW

Bank transactions are conducted in accordance with internationally accepted practices, in particular Community and ICC rules. Therefore, statutory provisions with regard to private bank transactions are rather scarce in Greece. Interest rates and the eligibility of transactions to be financed have been progressively de-regulated, so banks are free to negotiate financing terms. This, together with the development of financing techniques, has assisted in the creation of new ‘products’, either in the active part of the banking business (credit), or the passive part (deposits). Bank transactions are conducted by using printed forms prepared by the banks for each specific kind of transaction. Key statutory provisions are included in the Law Decree of July 17/August 13, 1923 on special provisions on corporations, and Law 5638/1932 on joint-account deposits, as amended by Law Decree 951/1971. Deposits of cash or securities for the benefit of a third party immediately transfer ownership to the latter. Neither the purpose of such deposit nor acceptance by the beneficiary need be declared. If it is stated that the deposited amount shall devolve upon the beneficiary after the death of the depositor, the heirs of the beneficiary have no right whatsoever on the deposit after his death. If such deposit violates the lawful rights of another, the latter may claim damages from the beneficiary; however, insofar as no attachment has been imposed on the bank, such claim does not impede delivery of the deposit to the beneficiary (Art. 2 of the Law Decree of July 17/August 13, 1923). Inalienable deposits (αναπαλλοτρίωτες καταθέσεις, anapallotriotes katatheseis) may only be made in the Bank of Greece (Art. 4). Their object may exclusively be: (a) Greek public securities; (b) money; or (c) debentures of the Bank of Greece (Art. 6), and may be effected only for the benefit of: (a) a legal entity not engaged in commercial activities; (b) a minor or a prodigal or a person placed under judicial custody; or (c) any person in the form of a life annuity, but in such case only by an act mortis causa (Art. 7). In the case of an inalienable deposit, the beneficiary collects the revenue; any alienation of the deposit or its revenue and any attachment thereof is null and void, even if meant to become effective after the inalienability is repealed (Art. 10). Inalienability is repealed: (a) by dissolution of 10. AP (full bench) 19/2001, NoB 50 (2002) 685–687.

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the beneficiary corporation; (b) in case the beneficiary is an incapacitated person, as soon as incapacity comes to an end; (c) in case of a life annuity, by the death of the beneficiary. Upon making the deposit, inalienability may be stipulated for a certain period of time or made dependent upon a condition, in particular the purchase of realty (Art. 11). In accordance with Article 1 I of Law 5638/1932, a cash deposit in a current account in the name of two or more persons jointly is a joint account (κοινός λογαριασμός, koinos logariasmos), if it includes a condition to the effect that such account may be used in whole or in part by one or more or by all beneficiaries separately without the concurrence of the others. Such cash deposit may be also stipulated to be a time deposit. In such accounts a condition may be added to the effect that in case of death of any of the beneficiaries the deposit and the related account automatically devolve upon the survivors until the last survivor. In such a case, the deposit devolves upon such beneficiary or beneficiaries free from any tax or assessment, but this exemption does not apply to the heirs of the last remaining beneficiary (Art. 2). Such deposit may not be disposed of by an act inter vivos or mortis causa, and the heirs of each beneficiary, except those of the last survivor, have no right on such deposit whatsoever (Art. 3). The deposit may be attached but, for that purpose, it is deemed to belong to all the beneficiaries in equal shares (Art. 4). In accordance with Article 25 of the Law Decree of July 17/August 13, 1923, a confirmed documentary credit contract (τραπεζική ενέγγυος πίστωση, trapeziki enengyos pistosi) is a contract by virtue of which a bank (the creditor) agrees with another (the debtor) to open a credit in favor of a third party (the beneficiary) by assuming the obligation to pay to the beneficiary, as soon as the latter hands over to the creditor a bill of lading, the amount of the credit that the creditor will collect from the debtor at the time of receiving delivery of the bill from the bank. By paying the amount of the credit to the beneficiary, the bank acquires a pledge on the goods covered by the bill. The bill is issued or endorsed to the bank or (in case of a bearer bill) is handed over to the bank; if it was stipulated that the beneficiary shall deliver ‘a full set of documents’, the bank is bound to require from the beneficiary, in addition to the bill, insurance policies and invoices covering the shipped goods. It may be stipulated that the beneficiary will deliver warehouse receipts instead of a bill (Art. 26). Payment to the beneficiary may be effected by the bank or by its correspondent either within the country or abroad (Art. 27). Provided there is no agreement to the contrary: (a) if the beneficiary states to the bank that he accepts the credit, it cannot be revoked unless the bank had expressly designated it as being revocable; and (b) if the bank had set in its notification to the beneficiary a date before which the latter is bound to deliver the bill and other accompanying documents, the credit is considered to have been revoked after such date (Art. 28). If the debtor gave the bank money or securities as guaranty for the opening of credit, the bank acquires a mortgage on such items ipso facto, without the formalities required by the law for constituting a mortgage (Art. 29). The bank is not liable for the fortuitous loss of, or damage to, the goods and for possible mistakes of the telegraph service in handling the cables; however, the bank is liable for its own intent or negligence, including negligence in appointing

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its correspondent (Art. 30). If the debtor neglects to pay the debt and the bank takes delivery of the goods, the bank is entitled to sell the goods in accordance with the provisions on pledges; such sale can take place only after lapse of 24 hours after notification in case of goods subject to deterioration, and of ten days in case of any other goods (Art. 31). If the proceeds from foreclosure are not enough to cover the claim of the bank, the debtor is liable for the outstanding amount (Art. 32). If, after expiration of the term, the goods have still not arrived at destination, the bank is entitled, with court permission, to foreclose on the goods in transitu or on those deposited in a warehouse (Art. 33). The above provisions are applicable by analogy in cases when the bank pays to the debtor monies against a bill handed over by the debtor, which monies the bank will collect from a third party by delivering the bill to the latter (Art. 34). Special provisions apply to security and collaterals taken by credit institutions when providing credit. In particular, Articles 35–47 of the Law Decree of July 17/ August 13, 1923 apply where a bank takes as a pledge on movables or a claim, either for a loan (simple or on a current account) or for securing a previous claim of the bank (Art. 35; τραπεζικό ενέχυρο, trapeziko enechyro; pledge granted to a bank). A pledge is established by agreement and by delivery of the pledged item to the bank; the agreement must be in writing; by a supplementary contract, a simple loan may be converted to a current account and vice versa (Art. 36). The pledged item is handed over either to the bank or to a third party jointly appointed by the contracting parties. The bank is considered to be the holder of the pledged goods: (a) if a bill of lading of a vessel or a railway covering such goods was issued or endorsed to the bank; (b) if the goods are deposited (i) in a storehouse leased by the bank and the bank holds the keys, or (ii) in a public warehouse and a warehouse receipt was endorsed to the bank; and (c) if the goods are stored in a custom house (Art. 37). If the pledged thing is a document of title, the pledge takes effect through endorsement of the document to the bank; no written agreement is required in such a case (Art. 38). If the pledged item is a personal claim of the debtor against a third party, then pledging entails the assignment of the claim by the debtor to the bank (Art. 39). If the claim becomes in any way due, the bank may foreclose (Art. 40). If the pledge consists in bearer securities cited in the bulletin of the Athens Stock Exchange, they must be sold in the Exchange (Art. 42). All other pledged items are auctioned by a notary (Art. 42). Items subject to deterioration or severe depreciation may be sold by court permission without an auction (Art. 43). Ownership title on bearer securities in case of foreclosure passes to the highest bidder, even if the pledgor was not the real owner; the real owner has no claim on the proceeds of the auction up to the amount of the bank’s claim, but he may sue the bank if he proves that a collusion took place between the bank and the mortgagor (Art. 46). The above provisions also apply to credits under a current account; the bank may close such account at any time (Art. 47). Mortgages on realty granted to a bank (τραπεζική υποθήκη, trapeziki hypothiki) are governed by Articles 48–59 of the Law Decree of July 17/August 13, 1923. The loan agreement and hypothecation are effected either by directly making the loan in accordance with the provisions of the Civil Code or by a

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promise of loan in accordance with the provisions of the above Law Decree (Art. 49). The loan contract must take the form of a notarial deed stating the terms of the loan and the execution of a mortgage before the money of the loan is paid to the borrower. Such mortgage secures the loan as from its registration, regardless of the time at which the money is paid (Art. 50). After registration of the mortgage, the bank may pay the money, in which case the debtor signs a notarial deed acknowledging receipt thereof; if the bank neither pays the money nor consents to the redemption of the mortgage, such redemption takes effect by court order (Art. 51). If the loan becomes due, the bank may proceed to attachment or foreclose on the mortgage or both, in accordance with the general provisions of the Code of Civil Procedure. Special legislation (Law 3301/2004, adopted in conformity with Directive 2002/4711) also applies to credit institutions (and other creditors, mostly the State and financial institutions subject to prudential supervision) and facilitates the realization of collaterals in the form of cash or financial instruments granted by debtors who are legal entities. On the occurrence of an enforcement event, the collateral taker has the right to realize such collaterals in an easy and simple manner without complying with any other legislation, including the Law Decree of July 17/August 13, 1923. If the collateral is a financial instrument, realization is possible by sale or appropriation and by setting off their value against, or applying their value in discharge of, the relevant financial obligations; if the collateral is cash, realization is made by setting off the amount against or applying it in discharge of the relevant financial obligations. It should be mentioned that an extensive use of the legislation regarding consumer protection (mainly Law 2551/1994) has led the courts to control the banking general terms and conditions. Courts have often held that a substantial number of ‘abusive’ contractual clauses or practices are invalid or illegitimate.12 VIII.

PRIVATE INSURANCE (ιδιωτική ασφάλιση, idiotiki asfalisi)

A.

SOURCES OF LAW

Insurance contracts (ασφαλιστικές συμβάσεις, asfalistikes symvaseis), life and non-life, are regulated by Law 2496/1997.13 Its provisions are in principle mandatory; according to Article 33 I thereof, contractual clauses reducing protection granted to the insured persons are null and void, unless otherwise provided, or unless such clauses apply to carriage of goods policies, credit or guarantee 11.

Directive 2002/47 of the European Parliament and of the Council of June 6, 2002 on financial collateral agreements, OJ L 168/43–50, 2002. 12. See mainly AP 589/2001, DEE 7 (2001) 1117–1121; 1219/2001, ibid. 1128–1141; 430/2005, DEE 11 (2005) 460–467. 13. Marine and aviation insurance are regulated by Laws 3816/1958 and 1815/1988 respectively.

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policies, and marine or aviation policies. Specific legislation regulates motor insurance contracts and the Motor Insurance Guaranty and Auxiliary Fund (Law 489/1976, as amended and codified by Presidential Decree 237/1986, as well as Ministerial Decision K4/585/1978). There is no specific legislation regarding reinsurance, and it is a matter of legal interpretation whether certain provisions of Law 2496/97 apply by way of analogy thereto. Cases on the matter are rare and this issue has not been settled as yet by the courts. The law regarding regulation of insurance business and insurance undertakings is to be found in Law Decree 400/1970, as amended. This Decree implements the relevant Community Directives. The implementation of EU Directives took place in two phases; in 1985 Presidential Decree 118/1985 implemented the so called first generation Directives 73/239 (on non-life insurance)14 and 79/267 (on life insurance),15 while in 1996 Presidential Decree 252/1996 implemented the so called second generation Directives 88/357 (on non-life insurance)16 and 90/619 (on life insurance),17 as well as the so-called third generation Directives 92/49 (on non-life insurance)18 and 92/96 (on life insurance).19 Presidential Decree 118/1985 implemented into Greek law, in addition to the above mentioned Directives, Directives 72/166,20 73/240,21 77/92,22 and 78/473.23 Furthermore, 14. First Council Directive 73/239 of July 24, 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, OJ L 228/3–19, 1973. 15. First Council Directive 79/267 of March 5, 1979 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct life assurance, OJ L 63/1–18, 1979. 16. Second Council Directive 88/357 of June 22, 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239, OJ L 172/1–14, 1988. 17. Council Directive 90/619 of November 8, 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267, OJ L 330/50–61, 1990. 18. Council Directive 92/49 of June 18, 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 (third non-life insurance Directive), OJ L 228/1–23, 1992. 19. Council Directive 92/96 of November 10, 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267 and 90/619 (third life assurance Directive), OJ L 360/1–27, 1992. 20. Council Directive 72/166 of April 24, 1972 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, OJ L 103/1–4, 1972. 21. Council Directive 73/240 of July 24, 1973 abolishing restrictions on freedom of establishment in the business of direct insurance other than life assurance, OJ L 228/20–22, 1973. 22. Council Directive 77/92 of December 13, 1976 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of the activities of insurance against agents and brokers (ex ISIC Group 630) and, in particular, transitional measures in respect of those activities, OJ L 26/14–19, 1977. 23. Council Directive 78/473 of May 30, 1978 on the coordination of laws, regulations and administrative provisions relating to Community co-insurance, OJ L 151/25–27, 1978.

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Directives 98/78,24 2002/92,25 and 2001/1726 have been implemented into Greek law by Presidential Decrees 288/2002, 190/2006 and 332/2003 respectively, while Directives 2003/4127 and 2005/6828 have not been implemented yet. Insurance contract law has been seriously affected by consumer protection considerations. Article 2 of Law 2251/1994 dealing with the validity of general terms and conditions has been repeatedly applied by the courts to insurance policies. The validity of clauses is assessed on the basis of both insurance law and consumer protection law. Legislation on data protection (Law 2472/1997, as amended) has also influenced insurance contract law, particularly in the field of life policies. According to recent cases, insurance companies are no longer allowed to collect information from hospitals regarding the medical record of policyholders without their prior written approval that must be specific, and not be given in advance.29 B.

GENERAL PRINCIPLES OF INSURANCE LAW

1.

The Policy

The insurance contract is evidenced by a written deed, i.e. the ‘policy’ (Art. 2 I of Law 2496/1997), although for motor insurance contracts the written form is a condition for their validity. Non-life policies may also take the form of a negotiable instrument, issued to the order of a named person, or even to the bearer (Arts 2 I, 27 III). It is an obligation of the insurer to deliver a policy to the insured (Art. 2 II). The policy must include the names of the contracting parties and the beneficiary (if different from the insured person), the insurance period, the insured person or property and the value of the insured interest, the insured risks, the insured sum, the exceptions from coverage, the premium and the applicable law (Art. 1 II). It must also mention the date and place of issuance. If the policy is accompanied by general terms and conditions or by specific terms applicable to specific risks, such terms have to be written in the part of the policy containing the information

24. Directive 98/78 of the European Parliament and of the Council of October 27, 1998 on the supplementary supervision of insurance undertakings in an insurance group, OJ L 330/1–12, 1998. 25. Directive 2002/92 of the European Parliament and of the Council of December 9, 2002 on insurance mediation, OJ L 9/3–10, 2003. 26. Directive 2001/17 of the European Parliament and of the Council of March 19, 2001 on the reorganization and winding-up of insurance undertakings, OJ L 110/28–39, 2001. 27. Directive 2003/41 of the European Parliament and of the Council of June 3, 2003 on the activities and supervision of institutions for occupational retirement provision, OJ L 235/10–21, 2003. 28. Directive 2005/68 of the European Parliament and of the Council of November 16, 2005 on reinsurance and amending Council Directives 73/239, 92/49 as well as Directives 98/78 and 2002/83, OJ L 323/1–50, 2005. 29. See decisions of the Hellenic Data Protection Authority nos 151/2001, 2/2004, 43/2004, 54/2004 (available in English), 16/2006, and 60/2006, , November 11, 2006.

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required by Article 1 II (Art. 2 IV). Failure to comply with this obligation grants to the insured a right to withdraw from the contract (Art. 2 VI). Policy terms need not be notified to or approved by the Ministry of Development. In motor insurance there are specific policy terms that are obligatory. In all other policies, terms need only comply with Law 2496/1997. Tariffs and premiums are not regulated by the State. However, Article 30 III of Law Decree 400/1970 provides that premiums of life policies have to be adequate, so as to allow the insurer to meet its obligations as to the adequate technical reserves and other aspects of financial supervision. 2.

Conclusion of the Contract – Obligation to Inform – Right to Withdraw or to Rescind

Insurance contracts are concluded on the basis of an application for insurance (usually in the form of a questionnaire prepared by the insurer). Submission of a signed application by the client constitutes an offer for the conclusion of the contract. According to the cases, contract conclusion occurs when the insurer issues and delivers the policy.30 The policy need not be signed by the insured and is valid if it bears a mechanical signature on the part of the insurer. Delivery of the policy to an insurance broker, who is deemed to be an agent of the insured (Art. 15A of Law 1569/85), amounts to conclusion of the contract. According to Article 2 VI of Law 2496/1997, the insurer has a pre-contractual obligation to provide the insured with the information specified in Article 4 II, III of Law Decree 400/1970. This information mainly relates to the law applicable to the policy, the identification of the insurer, its registered office, and the branch office issuing the policy. In addition, the insurer has to inform the insured about any general terms and conditions or any specific terms particular to certain risks, as well as to make such terms available to the insured. If this pre-contractual obligation is not met, the insured has a right to withdraw from the contract within 14 days as from delivery of the policy (Art. 2 VI). The insurer is also under a precontractual obligation to inform the insured about the existence of the latter’s right to withdraw as per Article 2 VI, otherwise the 14-day period does not commence. The right to withdraw expires after lapse of ten months as from payment of the first insurance premium. Furthermore, the insurer is under obligation to inform the insured in writing in connection to any deviations from the application for insurance submitted by the insured (Art. 2 V). If any such deviations exist, the insured has a right to withdraw within a period of one month as from receipt of the policy. The insurer must provide information on the right to withdraw, as well as to furnish a sample withdrawal statement. If all these obligations have not been met, the contract is deemed to be concluded as applied for by the insured; any deviations in the policy are deemed to be null and void. 30. AP 1180/1996, EEmp.D 48 (1997) 551–552; 848/2002, EEmp.D 54 (2003) 358–360.

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In both life and non-life policies with a contractual duration longer than one year, the insured is entitled to rescind the contract within 14 days as from delivery of the policy. Rescission does not need to be justified on any grounds and corresponds to a right ‘to reflect’ on the policy. The 14-day period does not commence, if the insured has not been informed in writing about this right. However, the right expires after lapse of two months as from payment of the first installment of the premium (Art. 8 III). 3.

Description of Risk, Increase and Decrease of Risk

The insured is under obligation to accurately describe the insured risk in all material aspects and to disclose all facts known to him that are reasonably material for the assessment of the risk by the insurer (Art. 3 I). Very often insurers provide relevant questionnaires, in which case they are responsible for the questions raised (Art. 3 I, II). In case of life insurance policies, failure on the part of the insured to accurately describe the risk, if due to intent on its part, deprives him from any rights, other than the right to redeem the value of the policy (Art. 29 II). In non-life policies, failure to properly describe the risk is dealt with as follows: if there was no fault or negligence on the part of either the insurer or the insured, then the insurer is entitled to either terminate the policy or to request its amendment. A request for amendment leads to termination if it has not been agreed by the insured within one month as from its receipt (Art. 3 III, IV). However, according to Article 3 VII, this termination comes into effect 15 days after notification to the insured. If the risk is not properly described due to negligence on the part of the insured, the insurer is granted a right to terminate or to request the amendment of the policy, as per Article 3 III, IV. If the false description of the risk by the insured is intentional, the insurer is entitled to terminate with immediate effects. This right of termination expires after lapse of one month as from the moment the insurer became aware of the false description. In case of material increase of the risk, the insured has to notify the insurer within 14 days and the insurer is entitled to either terminate the policy or to seek its amendment (Art. 4). This, however, does not apply to life policies, where the increase of risk has no legal effects. If at the time of conclusion of the insurance contract, i.e. usually the time of delivery of the policy, the insured or the beneficiary was aware that the risk has already occurred, the insurer is relieved from the obligation to pay insurance compensation for this particular risk and is entitled to collect future premium; however, if the insurer was also aware that the risk had already occurred, he is relieved from the obligation to pay compensation, but he is not entitled to collect future premium (Art. 5 II). 4.

Payment of Premium

Insurance coverage does not commence before payment of either the premium in full or of the first installment thereof, unless the policy expressly provides otherwise (Art. 6 I). In case of default in the due and punctual payment of an installment, the insurer may terminate in writing. Termination comes into effect

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after lapse of one month as from notification of termination. The termination notice must expressly inform the insured that if the instalment remains to be due and outstanding after lapse of the said month, termination will follow. 5.

Occurrence of the Event

The insured is obliged to notify the insurer of the occurrence of the risk within eight days and to forward all necessary information and documents. In case of non-life policies, negligent failure to meet this obligation entitles the insurer to claim damages for any loss suffered (Art. 7 I, II, VIII). In non-life policies, the insured is obliged to take all reasonable precautions to prevent occurrence of the risk, as well as to mitigate any loss when the risk occurs. He is also obliged to follow any instructions by the insurer. Negligent failure to meet this obligation gives rise to a claim for damages in favor of the insurer (Art. 7 III, IV, VIII). The insurer is relieved from the obligation to pay insurance compensation, if occurrence of the risk is attributed to intent or gross negligence, in case of non-life policies, or to intent alone, in case of life policies. In such cases the insurer is not entitled to collect future premium (Art. 7 V). Upon occurrence of the event insured, the insurer is obliged to pay compensation without delay. If the determination of the amount of compensation is expected to be long in duration, the insurer has to pay without delay the part of the compensation that has already been determined (Art. 7 VII). C.

NON-LIFE POLICIES

1.

General Principles

The existence of an insurable interest is a prerequisite of validity of the insurance contract. Any legal or other economic relationship between person (insured) and property may qualify as an insurable interest. Therefore, a person has a legitimate interest to insure any risk that is likely to cause damage to his property, or to reduce its assets or even to generate or increase a liability. In cases when the insurable interest is not obvious, the issue of whether the policy refers to insurance obtained in favor of the applicant or a third party (beneficiary) is, basically, a matter of legal interpretation. However, Article 9 I provides that in dubious cases insurance is obtained for the account of the party contracting with the insurer. Non-life insurance is essentially indemnity insurance and, in this sense, compensation cannot exceed the actual loss suffered. This principle is the basis of the rules regarding subrogation of the insurer to the rights of the insured against third parties responsible for the damage caused, as well as multiple insurance and overinsurance: according to Article 14, the insurer who pays insurance compensation is subrogated by operation of law to the rights of the insured against third parties, while the insured is liable for damages to the insurer for any prejudice caused in such rights. In case of multiple insurance of the same property to more than one insurer, the insured is obliged to notify accordingly and without delay each insurer in

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connection with the policies existing and the insured sums. Multiple insurance is valid, but only up to the loss suffered (Art. 15). In case of over-insurance due to intent of the insured or the beneficiary, the policy is invalid and the insurer may also claim future premium; otherwise, in the absence of intent, the insurer is liable to pay insurance compensation but only up to the volume of loss (Art. 17 II, III). In case of under-insurance, insurance compensation is proportionately reduced (Art. 17 I). Article 16 deals with the volume of insurance compensation owed by the insurer, which is equal to the real value of the insured property at the time of the insured event. It is possible to fix this value in advance by way of a prior written agreement that can only be challenged for fraud, simulation, or bias. 2.

Fire Insurance

Fire insurance is dealt with in Article 19 and covers damages due to fire or lightning. Unless otherwise agreed, explosion and similar events are also covered even if fire did not ensue, as is theft during or immediately after fire. Exceptions to the cover include intent or gross negligence of the insured, as well as fire due to war, civil war, riot, or public disturbances. Compensation includes the reduction of the value of property damaged, recovery of damages caused by measures necessary for the averting or limitation of the loss, as well as extinction of fire and demolition expenses. 3.

Transport Insurance

Transportation (carriage of goods) insurance includes all risks that may negatively affect the transported goods from delivery to the carrier until termination of the carriage. Parties are allowed to expressly exclude certain risks. Route deviations and other itinerary alterations, as well as alterations relating to the vehicle, do not relieve the insurer from liability, unless they are attributable to the insured and were not necessary; in the latter case, the rules as to increase of risk apply. Insurance compensation includes the real value of the goods carried in the place where they were delivered for carriage and at that time, as well as transportation expenses, customs duties, other expenses and loss of profit (Art. 20). 4.

Liability Insurance

Liability insurance is dealt with in Articles 25 (voluntary liability insurance) and 26 (obligatory liability insurance, other than motor insurance). According to Article 25, compensation includes expenses directly related to defending or satisfying third-party claims against the insured, due to acts or omissions that fall within the scope of the policy. The insurer is relieved from liability, if such acts or omissions are due to intent of the insured. Article 26 provides that, in case of liability insurance that is mandatory by law, the injured party has a direct claim against the insurer. However, this Article has not yet come into force (see Art. 26 V in f.).

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Motor insurance, i.e. liability insurance for accidents caused by automobiles, is compulsory and is dealt with by specific regulation (Presidential Decree 237/1986 and Ministerial Decision K4/585/1978). The general terms and conditions (including exceptions from coverage) are provided by the law and cannot be derogated by contractual clauses. Injured third parties have a direct right of action against the insurer. 5.

Other Policies

Other types of policies expressly dealt with by Law 2496/97 are crop insurance (Art. 21), credit and guarantee (insolvency) insurance (Art. 22), environmental liability insurance (Art. 23), and business interruption insurance (Art. 24). The provisions in connection to the above mentioned policies are not mandatory. Marine insurance is dealt with in the Code of Private Maritime Law (i.e. Law 3816/1958; see Ch. 13, Section IX). D.

LIFE POLICIES

Compensation in life policies is not associated to any damage or other financial loss caused. As a result, the principles of indemnity and prohibition of unjust enrichment do not apply. Life policies are distinguished in policies covering the risk of death (Arts 28–30), personal accidents (Art. 31) and diseases (Art. 32). In policies covering the risk of death, the liability of the insurer is to pay the agreed sum. Such policies may be either in the form of life-term policies, where the insured event is death, or in the form of endowment policies, where the insured event is survival after a certain age. In both cases, policies may be in the form of own-life policies or in the form of third-party life policies. In personal accident and disease policies, the obligation of the insurer is to pay the agreed sum, or to cover the financial loss due to the accident or the disease. A person may insure his own life, or the life of a third party; however, when the agreed risk is death of a third party, the policy is invalid, unless accompanied by the latter’s consent in writing. Suicide does not relieve the insurer from liability, unless it occurs within two years as from conclusion of the contract. When the agreed risk is a third party’s death, the insured or the beneficiary is not entitled to the agreed sum, if he intentionally caused the death. In life policies for risks of death, the insured may redeem the policy after lapse of an agreed period, which cannot exceed three years. In accident policies, the agreed risk is injuries that lead to death, or need for medical treatment, or total or partial body incapacity. However, the insurer is relieved, if occurrence of the risk is due to intent by the insured. Disease policies cover diseases that were unknown to the insured on the date of contract conclusion. If the disease is attributable to intent by the insured, the insurer is again relieved from liability.

256 E.

Nicholas A. Deloukas and Evanghelos Perakis LIFE POLICIES OF AN INVESTMENT NATURE

Since the 1980s, life insurance policies representing an investment have become increasingly common. Law 2496/1997 does not include specific provisions on such policies; instead, legislative provisions about investment policies, including unit-linked products, are to be found in Articles 13C and 39–42 of Law Decree 400/1970, as amended. F.

REGULATION OF INSURANCE BUSINESS

Insurance is a highly regulated business. The supervising and regulatory authority is the Ministry of Development. There is legislation providing for a new separate and independent regulatory authority, organized and operating in a way similar to other regulatory authorities of the financial sector, but it has not materialized yet. The main body of legislation on regulation of insurance enterprises is Law Decree 400/1970, as amended, implementing the first, second and third generation Directives, i.e. basically Directives 73/239, 88/357 and 92/49 on non life insurance business31 and 79/267, 90/619 and 92/96 on life insurance business.32 Insurance business (ασφαλιστική επιχείρηση, asfalistiki epicheirisi) is conducted only under authorization granted by the State (i.e., the Ministry of Development). Authorization is granted for specific classes of insurance business. Such classes are divided in two main categories, namely non-life insurance and life insurance classes. New insurance companies are licensed as either life or non-life companies. There still exist in the market some insurance companies carrying out both life and non-life business; these were established prior to the implementation of the regulation for the separation of life and non-life business and are obliged to employ methods of separate financial administration of funds for life and nonlife policies. An authorization is granted only to corporations (sociétés anonymes; see Ch.12, Section II), whose corporate purpose relates exclusively to insurance business. Insurance can also be conducted by mutual insurance societies. Marine insurance may also be conducted by Lloyd’s underwriters. Foreign insurance companies registered in another EU member-state may operate in Greece either under a branch office (freedom of establishment) or through their offices abroad (freedom of services). Greece has fully implemented the single passport (92/49 and 92/96),33 freedom of establishment (73/239 and 79/267)34 and freedom of services (88/357 and 90/619)35 directives. Foreign insurance companies registered with third (non-EU) countries may establish branch offices in Greece following authorization granted by the Ministry of Development. 31. 32. 33. 34. 35.

See above, ftns 14, 16, 18 respectively. See above, ftns 15, 17, 19 respectively. See above, ftns 18, 19 respectively. See above, ftns 14, 15 respectively. See above, ftns 16, 17 respectively.

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Insurance companies must comply with minimum capital requirements and financial standards (i.e., corporate capital, guarantee fund, solvency margin, technical (provisions) reserves and investments). The volume of corporate capital, guarantee fund, solvency margin, technical reserves and investments required by the law mainly depend on the volume of business conducted by each insurance company, the volume of premium collected and the number of classes for which it is licensed. Investments correspond to technical reserves and consist only of assets deemed to be a secure and easily liquidated investment. Such assets are described in the law. Investments should only be located within the EU and are charged with a statutory lien in favor of the policyholders, ranking prior to all other liens, save for the liens securing claims of employees and claims for remuneration and expenses of the administrator in case of liquidation or bankruptcy of an insurance company. Solvency margin, technical reserves and investments are supervised on a permanent basis throughout the year; however, every year in July, insurance enterprises are obliged to submit financial data in connection to their solvency margin, technical reserves and investments for the past financial year; these are checked by the end of October. In practice, failure to comply with the regulation on financial supervision is the most common ground for which the Ministry revokes the authorization. Other common grounds for revocation are failure to pay insurance compensation to policyholders (or injured third parties in motor insurance), inadequate administration of the insurance company, and insecurity as to the interests of policyholders, which is usually due to inadequate financing of the insurer. Winding-up and liquidation is closely supervised by the regulatory authority, i.e. by the Ministry of Development, Department of Insurance Enterprises. The legal grounds for corporate dissolution that apply to all corporations apply to insurance companies as well; revocation of license is an additional ground for dissolution. However, special winding-up proceedings are established for insurance companies. In case of license revocation, all assets of the company freeze. The regulatory authority appoints an insurance expert as the superintendent of the winding-up process. A liquidator is also appointed by the court. If the insurance company is being wound up, it cannot be declared bankrupt; all legal and enforcement proceedings against the company are stayed, and the same applies to its civil liability policyholders. The relevant Directive 2001/1736 has been implemented by Presidential Decree 332/2003. BIBLIOGRAPHY (in Greek, unless otherwise indicated) A.

GENERAL PART OF COMMERCIAL LAW

L. Georgakopoulos, Manual of Commercial Law, vol. I fasc. 1: General Part (2nd edn, Athens, 1995). 36.

See above, ftn. 26.

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A. Kiantou-Pampouki, Manual of Commercial Law, Basic Notions – Commercial Companies (2nd edn, Thessaloniki, 1975). T. Liacopoulos, General Commercial Law (Athens, 1998). I. Marcou, Manual of Commercial Law, vol. I: Basic Notions (Athens, 2004). C. Pampoukis and P. Papadrossou-Archaniotaki, Commercial Law – Introduction – Basic Notions (Athens-Thessaloniki, 2000). E. Perakis, General Part of Commercial Law (Athens, 1999). S. Psychomanis, Commercial Law – General Part (Athens, 2004). C. Rocas, Commercial Law, General Part (Athens, 1972). I. Rocas, Commercial Law – General Part (Athens-Komotini, 2003). N. Rocas, Elements of Commercial Law, vol. I: General Part, Commercial Contracts (Athens, 1998). A. Sinanioti, Commercial Law – General Part (Athens, 2000). B.

BANKRUPTCY AND REORGANIZATION OF UNDERTAKINGS

L. Georgakopoulos, Manual of Commercial Law, vol. I fasc. 3: Bankruptcy and Reorganization (2nd edn, Athens, 1997). L. Kotsiris, Bankruptcy Law (6th edn, Thessaloniki, 1998). L. Kotsiris and R. Hatzinicolaou-Angelidou, Law of Reorganization and Liquidation of Failing Firms (2nd edn, Athens-Thessaloniki, 2002). T. Liacopoulos, ‘Le redressement des entreprises en difficulté en droit hellénique’, RIDC 37 (1985) 985–999 [in French]. P. Mazis, Special Liquidation of Failing Firms (2nd edn, Athens-Thessaloniki, 2005). E. Perakis, Introduction to the Law of the Reorganization of Firms (Athens, 1987). E. Perakis, Agreement of Creditors with the Undertaking under Articles 44 and 45 of Law 1892/1990 (Athens, 1993). S. Psychomanis, Bankruptcy Law (2nd edn, Athens-Thessaloniki, 2004). C. Rocas, Bankruptcy Law (12th edn, Athens, 1978). N. Rocas, Elements of Bankruptcy Law (2nd edn, Athens-Komotini, 1997). C.

COMMERCIAL PAPER

N. Deloukas, Commercial Paper (3rd edn, Athens, 1980). L. Georgakopoulos, Manual of Commercial Law, vol. II fasc. 1: Commercial Paper (2nd edn, Athens, 1997). A. Kiantou-Pampouki, Commercial Paper (5th edn, Thessaloniki, 1997). I. Marcou, Law of Bills of Exchange (3rd edn, Athens, 2002).

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I. Marcou, Law of Checks (3rd edn, Athens, (2002). I. Marcou, Manual of Commercial Law, vol. II: Commercial Paper (Athens, 2005). N. Rocas, Commercial Paper (Athens, 1992). D.

LAW OF COMPETITION AND INDUSTRIAL PROPERTY

E. Alexandridou, Law of Competition and Consumer Protection (4th edn, Thessaloniki, 1992). V. Antonopoulos, Industrial Property (2nd edn, Athens-Thessaloniki, 2005). A. Argyriadis, Inventions (4th edn, Athens, 1984). N. Deloukas, The Protection of a Commercial Business (2nd edn, Athens, 1980). L. Kotsiris, Law of Competition (3rd edn, Athens-Thessaloniki, 2000). A. Liacopoulos, Economic Freedom as Object of Protection in the Law of Competition (Athens, 1981). T. Liacopoulos, Industrial Property (5th edn, Athens, 2000). M.-Th. Marinos, Unfair Competition (Athens, 2002). K. Pampoukis, The Law of Distinctive Signs (Thessaloniki, 1965). N. Rocas, Unfair Competition (Athens, 1975). N. Rocas, The Law of Trademarks (Athens, 1978). N. Rocas and E. Perakis, ‘Greece’ in World Law of Competition, J.O. von Malinowski (ed.) (New York, 1983) [in English]. N. Rocas (ed.), Law of Trademarks (Athens, 1996). N. Rocas (ed.), Unfair Competition (Athens, 1996). N. Rocas, Industrial Property (Athens-Komotini, 2004). E.

INTELLECTUAL PROPERTY

K. Asprogerakas-Grivas, Das Urheberrecht in Griechenland (Munich, 1969) [in German]. D. Kallinikou, Copyright and Related Rights (2nd edn, Athens, 2005). L. Kotsiris, Greek Copyright Law (4th edn, Thessaloniki, 2005). G. Koumantos, Intellectual Property (8th edn, Athens, 2002). M.-Th. Marinos, Copyright (2nd edn, Athens, 2005). F.

BANKING

L. Georgakopoulos, Stock Exchange and Banking Law (Athens, 1999). S. Psychomanis, Elements of Banking Law (5th edn, Thessaloniki, 2001).

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S. Psychomanis, Banks and Their Supervision (Athens-Thessaloniki, 2006). N. Rocas, Elements of Banking Law (Athens-Komotini, 2002). I. Velentzas, Banking Law (3rd edn, Thessaloniki, 2003). G.

INSURANCE

A. Argyriadis, Elements of Insurance Law (4th edn, Athens-Thessaloniki, 1986). S. Bakas-Tsirimonaki, ‘Les principes généraux du droit hellénique de l’assurance’, RIDC 37 (1985) 69–106 [in French]. N. Deloukas, ‘Grundzüge des griechischen Versicherungsaufsichtsrechts’, Zeitschrift für die gesamte Versicherungswissenschaft 56 (1967) 137–149 [in German]. V. Kiantos, Insurance Law (9th edn, Athens-Thessaloniki, 2005). C. Rocas, Private Insurance Law (Athens, 1974). I. Rocas, Private Insurance Law (10th edn, Athens, 2005). A useful translation of certain Business and Trade Laws of Greece (Athens, 1985) has been made by C. Taliadoros.

Chapter 12

Business Associations Phaedon John Kozyris*

I.

INTRODUCTION

A.

GENERAL

Greece is a Civil Law country and its laws regulating business associations are in many respects similar to those of the other Continental countries, especially France the Commercial Code of which has had a major impact. Following Civil Law patterns, the thrust of Greek law is more to regulate than to enable, unlike in the US. Not only does it contain many mandatory substantive provisions but also subjects business associations to significant governmental controls through an authorization and supervision process. Greek legislation, principally presidential decrees, has harmonized company law with the various Community Directives which relate principally to the protection of third parties dealing with the company, to company consolidation and to the method of presentation of financial information. Further, in Chapter 17, Section I F, we explore the developments which now mandate that companies either chartered or having their central administration or their principal place of business in a member state of the European Union are entitled to establish themselves and engage in activities in other states, and thus in Greece, without interference in their * Professor of Law (emer.), The Ohio State University and University of Thessaloniki. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 261–289. © 2008, Kluwer Law International BV, The Netherlands.

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internal affairs through the ‘real seat’ doctrine. In particular, tax treatment less favorable than for domestic corporations is prohibited.1 In addition, for major multi-national enterprises, the European Company form (Societas Europea) has been finally introduced within the Member States through Regulation 2157/20012 (see also Directive 2001/86,3 relating to labor matters). Basically, such Company may be formed by at least two other companies chartered and having their central administration in different Member States. It is subject to the law of the state where chartered and the minimum capitalization is EUR 120,000. Companies which do not have their central administration within the EU may participate only if they are chartered in a member state as well as have a real and continuous connection with the economy of a member state. The use of this form dispenses with the necessity of national companies forming and qualifying subsidiaries to facilitate transborder operations. It also may motivate the movement of companies to more tax-friendly states. The most difficult task of the explicator of Greek corporate law in English is selecting the proper terminology. The related species in Greece contain creatures that are different and more numerous than those in the Anglo-American world and even under the best of circumstances a translator aims only at an approximation. Traduire, c’est trahir, traduttore-traditore . . . . My survey of English-language texts dealing with Continental and Greek corporate law discovered a bewildering diversity of terms and all too many inconsistencies and questionable uses. In the absence of an accepted legal Esperanto, one has to make his own choices. The discussion and explication that follows will be centered on those features of the various companies that present significant differences from their Anglo-American counterparts, with the emphasis placed on the second part of the hyphen. The statutory scheme for associations in Greece appears confusing to an outside observer who is lost in the multiplicity and diversity of the relevant texts. In sorting things out, it is important to take cognizance of the generic backdrop provisions of the Civil Code: Articles 741–784, which in principle apply to all associations (εταιρίες, etairies; sociétés), and Articles 61–77, which govern those that have legal personality. Incidentally, most associations constitute legal entities the exceptions being some civic ones and the silent partnership. Purported synonyms such as venture, entity and enterprise are less apt and are avoided as potentially misleading. For a fuller explication of this background regime, see Ch. 5, Section III A. For commercial associations (‘companies’), one has also to look to the special provisions of the Law on Commerce. Various projects to reform it, including the corporate sections, bore no fruit. In addition, certain forms such as 1.

See Royal Bank of Scotland v. Elliniko Dimosio, Case C-311/97 [1999] ECR I-2651; Petri Mikael Manninen, Case C-319/02 [2004] ECR I-7477; Marks & Spencer plc v. David Halsey (Her Majesty’s Inspector of Taxes) Case No. C-446/03 [2005] ECR I-10837; SE 708/2002, , August 8, 2006. 2. Council Regulation 2157/2001 of October 8, 2001 on the Statute for a European company, OJ L 294/1–21, 2001. 3. Council Directive 2001/86 of October 8, 2001 supplementing the Statute for a European company with regard to involvement of employees, OJ L 294/22–32, 2001.

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the corporation (ανώνυμη εταιρία, anonymi etairia; see below, Section II) and the close corporation (εταιρία περιορισμένης ευθύνης, etairia periorismenis euthinis; see below, Section III) continue to be subject to detailed ad hoc statutes respectively of 1920 and 1955, as amended, providing still a third set of governing rules. For each particular type of company, the closest American term has been selected and, following the Greek name and its customary acronym, if any, the French equivalents are sometimes added in parentheses. The descriptions in this Chapter of the Greek law and practice on business associations are necessarily summary, elliptical and oversimplified. The presentation is limited to commercial associations and more particularly to the basic corporate and partnership forms. The peculiarities in Continental Law with regard to the fundamental distinction between commercial and civil are not pursued because they relate principally to the external activities and not to structure or governance on which this Chapter is focused. Special legislation provides comprehensive treatment of ‘maritime’ corporations (Law 959/1979 and Art. 55 of Law 1892/1990). Statutes dealing with certain industries, for example, banking, insurance, transportation, investments, leasing and export trading sometimes impose additional requirements on companies in these industries. Lawyers may incorporate professionally in limited numbers under a special regime policed by the Bar Associations (Presidential Decrees 518/1989 and 152/2000). Furthermore, Law 3049/2002, which regulates the privatization of enterprises in the public sphere, provides for the possibility of the state owning ‘gold’ shares with multiple voting rights, especially veto powers. B.

STOCK MARKETS

There is no room here to cover the extensive and important legislation and practice relating to the listing and trading of securities and derivatives on the Greek markets as well as to certain new types of companies connected with securities’ transactions, largely responding to developments at the EU level. As of 1993, the following developments have taken place. For the securities’ markets, see generally Presidential Decrees 348/1985, 350/1985, as modified by Law 1914/1990, 360/ 1985, dealing with the Athens Stock Exchange (ASE), and Law 1806/1988, and Presidential Decree 489/1989, creating and regulating also the ‘parallel’ market at the ASE. Law 1806/1988, as amended by Law 1892/1990, also contains comprehensive provisions on brokers and brokering transactions in securities. A statute of major importance, Law 1969/1991, implemented by presidential decrees, repealing the prior statute (Law Decree 608/1970), conformed Greek law to Directive 85/6114 and set up a complete system of regulation of investment companies and mutual funds in a manner intended to encourage the flow of funds into the securities markets. Law 1969/1991 also amended and supplemented most of the 4.

Council Directive 85/611 of December 20, 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), OJ L 375/3–18, 1985.

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aforementioned provisions on stock exchanges and on transactions and set up a kind of a Securities Exchange Commission. A separate statute (Law 1775/1988) contains favorable rules on venture capital corporations which invest substantial sums in high technology or innovation projects. Finally, it is worth mentioning that some aspects of insider trading or tipping have been penalized or outlawed by traditional rules (see Arts 252, 371, 390, 405, 406 PC, Art. 16 of Law 146/1914 and Arts 22, 40, 56 and 63 of Law 2190/1920) or new rules (Art. 30 of Law 1806/1988), while many old rules (Art. 191 PC, Art. 56 of Law 2190/1920, Art. 34 of Law 3632/1928) and new rules (Art. 1 of Law 1960/1991, Arts 14, 72 and 73 of Law 1969/1991) prohibited egregious ‘fraud’ in securities’ transactions. After 1993, securities trading continued to attract the attention of the lawmakers and administrators, especially following the stock market crash of 1999–2000. Four categories of regulations deserve our attention: insider trading prohibitions, introduction of the international accounting principles, takeover rules and corporate governance. A new statute, Law 3340/2005, implementing Directives 2003/6,5 2003/124,6 2003/125,7 and 2004/72,8 in effect since July 2005, imposes a comprehensive regime of prohibition of ‘market abuse’ which covers both market manipulation and illegal trading on inside information. Severe fines of violators as well as even removal of corporate directors, e.g. who hide information, are provided. Before the enactment of this statute, insider trading had been recently regulated under Presidential Decree 53/1992. It is noteworthy that the Council of State, by majority vote, held that the insider trading prohibition in that decree did not extend to wash sales even where intended to suggest interest and thus inflate the price of securities.9 Law 3401/2005 has harmonized the regime governing prospectus requirements to conform to Directive 2003/71.10 See also Directive 2004/109 on transparency.11 5. Directive 2003/6 of the European Parliament and of the Council of January 28, 2003 on insider dealing and market manipulation (market abuse), OJ L 96/16–25, 2003. 6. Commission Directive 2003/124 of December 22, 2003 implementing Directive 2003/6 of the European Parliament and of the Council as regards the definition and public disclosure of inside information and the definition of market manipulation, OJ L 339/70–72, 2003. 7. Commission Directive 2003/125 of December 22, 2003 implementing Directive 2003/6 of the European Parliament and of the Council as regards the fair presentation of investment recommendations and the disclosure of the conflicts of interest, OJ L 339/73–77, 2003. 8. Commission Directive 2004/72 of April 29, 2004 implementing Directive 2003/6 of the European Parliament and of the Council as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of insiders, the notification of managers’ transactions and the notification of suspicious transaction, OJ L 162/70–75, 2004. 9. SE 1915/2005, EEmp.D 56 (2005) 783–790. 10. Directive 2003/71 of the European Parliament and of the Council of November 4, 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34, OJ L 345/64–89, 2003. 11. Directive 2004/109 of the European Parliament and of the Council of December 15, 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34, OJ L 390/38–57, 2004.

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Regulation 1606/2002,12 together with Regulations 1864/2005,13 2238/2004,14 and 1725/2003,15 and Directive 2003/5116 require corporations listed on a European Securities Exchange to report their consolidated financial statements (balance sheets and profit-and-loss statements) in accordance with the international accounting principles after 2005. Law 2992/2002 has introduced this regime into Greece. In addition, the Member States may impose this obligation on the unlisted companies and close corporations, which in Greece is under consideration and concerns have been expressed about how to account for the current value of assets and for deferred taxes. Back in 2000, the Greek Securities Exchange Commission adopted a relatively balanced regime for takeovers through public tender offers (Decision 14212/2000). In the meantime, a Directive, proposed in 2001, as well as a follow-up amended version, were rejected by the European Parliament upon heavy pressure from anti-takeover forces including states, e.g. Germany, on the theory that it limited the ability of management to ‘defend’ the corporation, in line with similar developments in the United States of America. Now a new watered-down Directive 2004/25 on takeover bids has been adopted,17 to be implemented by the Member States by the summer of 2006, leaving it to the states whether to adopt the controversial limitations on management’s defensive games. Finally, Law 3016/2002, as amended by Law 3091/2002, imposed certain governance obligations on corporations having listed securities. In addition to strengthening the conflict-of-interests restrictions, to the adoption of internal bylaws by the board and to controls on the use of funds obtained when capital is increased, the statute requires the establishment of three committees (or bodies): Audit, Shareholder Services and Publicity. Further, the board by its own decision is divided into ‘executive’ (day-to-day) and ‘non-executive’ (longer-term-interests) positions. The latter must constitute at least one-third of the board and, except 12. Regulation 1606/2002 of the European Parliament and of the Council of July 19, 2002 on the application of international accounting standards, OJ L 243/1–4, 2002. 13. Commission Regulation 1864/2005 of November 15, 2005 amending Regulation 1725/2003 adopting certain international accounting standards in accordance with Regulation 1606/2002 of the European Parliament and of the Council, as regards International Financial Reporting Standard No. 1 and International Accounting Standards Nos 32 and 39, OJ L 299/45–57, 2005. 14. Commission Regulation 2238/2004 of December 29, 2004 amending Regulation 1725/2003 adopting certain international accounting standards in accordance with Regulation 1606/2002 of the European Parliament and of the Council, as regards IASs IFRS 1, IASs Nos 1 to 10, 12 to 17, 19 to 24, 27 to 38, 40 and 41 and SIC Nos 1 to 7, 11 to 14, 18 to 27 and 30 to 33, OJ L 394/1–175, 2004. 15. Commission Regulation 1725/2003 of September 29, 2003 adopting certain international accounting standards in accordance with Regulation 1606/2002 of the European Parliament and of the Council, OJ L 261/1–420, 2003. 16. Directive 2003/51 of the European Parliament and of the Council of June 18, 2003 amending Directives 78/660, 83/349, 86/635 and 91/674 on the annual and consolidated accounts of certain types of companies, banks and other financial institutions and insurance undertakings, OJ L 178/16–22, 2003. 17. OJ L 142/12–23, 2004.

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when the board contains designees of the minority shareholders, at least two of them must be ‘independent’ and elected as such by the meeting of shareholders. The independent directors must not hold more than 0.5 per cent of the corporate capital and must not have a dependency relationship with the corporation or persons connected to it, and they may submit to the shareholders report separate from those of management. The Audit Committee is institutionally independent, subject to the authority of the non-executive directors, and is given extensive powers of supervision and information over corporate transactions. For other issues, see Laws 3371/2005 and 3152/2003 (the organization of the ASE and regulation of the securities markets generally), 2836/2000 (stock exchange), 2843/2000 (payment for shares, international shipping), 2733/1999 (new Stock Market), 2648/1998 (stock exchange), 2579/1998 (investor protection), 2533/1997 (derivatives market), 2396/1996 (investment services), 2324/1995 (amending Law 1806/1988), Ministerial Decision 2063/B.69/1999 (listing of shares), Decisions 18/1999, 20/1999, 46/2000 and 47/2000 of the Board of Directors of the ASE (listing, trading), and Decisions 3403/38/279/2003 (the parallel market) and 5/204/14.11.00 (publicity and disclosures) of the Securities Exchange Commission. II.

CORPORATION (ανώνυμη εταιρία, AE, anonymi etairia; société anonyme; Arts 29 et seq. LC, Arts 888–900 CC, Law 2190/1920, as amended and codified)

The corporation is the form used by most business enterprises of some substance and dimension and, as a consequence, carries the most prestige. It enjoys all the attributes of corporateness, its governance structure is tripartite and it is taxed as a separate entity. A.

FORMATION

Instant incorporation by filing a one-page paper signed by an incorporator without advancement of capital, quite common in the US, is not possible in Greece. For a corporation to come into existence, certain indispensable steps must all take place: (a) An instrument containing the corporate charter must be executed before a notary by at least two persons (natural or legal) who are the ‘founders’ (ιδρυτές, idrytes), and not just ephemeral incorporators. According to the prevailing view, this instrument is in the nature of bilateral or collective durational arrangement. (b) The founders must either (i) subscribe to all the registered or bearer shares of the corporation (the minimum required capital is EUR 60,000) at or

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above par and must pay then at least 25 per cent of such subscriptions, but not less than the above minimum, within two months of formation; the balance must be paid within no more than ten years and the shares until then must be registered; shares issued for property must be paid in full; or (ii) proceed with the public subscription of the shares through a Prospectus, in which case the minimum capital is set at EUR 1,500,000, the approval of the Securities Exchange Commission must be obtained and the use of an underwriter, a bank, is required; further, the shares must be listed on the ASE within a year. (c) Approval must be obtained by decision of the local prefecture, or the Ministry of Commerce in certain instances, which follows clearance of the name of the corporation by the local chamber of commerce, confirming compliance with the legal requirements of formation. Refusal to approve is subject to review by the Council of State.18 (d) The charter and the decision of approval and certain additional information must be recorded in the registry of corporations, which is kept at each prefecture. Law 3419/2005 has now created a new central Commercial Registry for corporations. Next, these two documents are published in a special section of the Government Gazette. The corporation, however, comes into existence at the time of registration, not of publication. Third parties are charged with knowledge of the contents of the publication but not of the registration unless, in the latter case, the corporation proves that they in fact knew. A corporation may be declared void if it failed to meet the formal requirements on its name and capitalization, if its purpose is unlawful or against the public order, if it has fewer than two founders or if all founders lacked legal capacity at formation. Annulment, which is rare since all these elements are checked at formation, requires a judicial decision and does not affect vested rights and obligations. It is followed by wind-up and liquidation. (e) Registration with the tax authorities, together with the certification of the related accounting books, to be followed also with becoming a member of the local Chamber of Commerce. In Article 1, Law 2941/2001 simplifies and accelerates the above procedures for corporations capitalized at less than EUR 300,000. Persons acting for a corporation to be formed and in its name after execution of the notarial act are considered to have constituted an informal general partnership and thus are liable jointly and severally for any assumed obligations. Before such execution there is no obligation except possibly for fraud or unjust enrichment.19 The corporation may, however, within three months of formation, assume sole responsibility for acts carried out in its name. Property acquired for it, except for realty, passes automatically to it upon formation. It is possible for persons to 18. SE 1974/1991, Harm. 45 (1991) 819–820. 19. AP 1341/1997, EEmp.D 49 (1998) 314–315; CA (Thessaloniki) 2044/2003, Harm. 59 (2005) 548–550.

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enter into a contractual relationship to form a corporation in which case they are bound by its terms. Eventually, for legal persons, the corporate veil may be pierced if it is employed ‘abusively’ to the detriment of third parties in a manner resembling the ‘alter-ego’ or ‘disregarding the corporate entity’ doctrines known around the world, including the United States. However, neither the intention of limiting liability nor the concentration of all the shares in the hands of one person is by itself enough.20 A final comment on the realities: in late 2005, the World Bank estimated that it takes 38 days and requires 15 certificates to incorporate in Greece. B.

CHARTER (καταστατικό, katastatiko; statuts)

This document is very extensive and contains most of the bylaws as well. In addition to the usual content of its US counterpart (name, duration, capitalization, seat, first board), the required provisions must deal with the manner of payment of capital, the convocation, composition, operation and authority of the board and of the meetings of shareholders, the statutory auditors, the rights and limitations of shares and shareholders, the balance-sheet and method of distributing profits and the dissolution and liquidation of assets. Duration of the corporation must be for a definite period. General-purpose clauses are not valid. The charter may contain optional clauses, e.g. naming the first board, adding further restrictions to the minimum legal requirements, for example, by requiring supermajorities for amendment or for board or shareholder action, or incorporating shareholder agreements on their interrelations. While the corporate purpose (its object or at least its nature) limits the very capacity of the corporation to act (ultra vires), such limitation may not be asserted against third parties who did not and should not have known it. Further, a third party may rely on the authority of the persons who represent the corporation, and lack of it may not be opposed to him unless he knew it or should have known. In any event, however, legal incapacity is deemed to exist for acts expressly prohibited by law, for example, acquisition by the corporation of its own shares. C.

CAPITAL (κεφάλαιο, kefalaio)

The features and rights of shares (μετοχές, metoches; actions) are subject to extensive limitations and regulation. The terms of all shares must be defined in the charter. Shares of stock must have par value of at least EUR 0.5 and not more than EUR 100 each but they may be issued above par; have voting rights proportionate to their ratio to total capitalization so that the number of votes to be cast 20. CA (Piraeus) 403/2002, ENautil.D 30 (2002) 129–136; 504/2003, EEmp.D 55 (2004) 154–156; and 574/2004, DEE 10 (2004) 1162–1163.

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depends on par value; be subscribed for and issued, there being no such thing as just authorized shares. Preferred stock may also be issued in all sorts of variations (cumulative, participating, profit-sharing, interest-bearing, etc.) and need not have voting rights. Voting preferred may be convertible into common but for non-voting such conversion requires the approval both of the preferred and of the common shareholders by a three-quarters vote. The concept of treasury shares is unknown. A corporation may not acquire its own shares except in certain limited circumstances and even then it must either cancel or sell them within a short period of time. Furthermore, a subsidiary (generally over 50 per cent ownership of capital and certain other forms of control) may not acquire shares in the parent. Acquisition of all the shares by one person does not affect the corporate existence. The subscription price of shares may be paid in cash or in property which has monetary value. It is disputed whether intangible property difficult to appraise is acceptable. The valuation of contributions in kind must be made by a special external committee consisting of one or two senior civil servants or certified public accountants and a representative of the chamber of commerce. The valuation report is published in the Government Gazette. Future services do not constitute property. Thus, it is virtually impossible to issue watered stock or discount or bonus shares. It should be pointed out, however, that the founders of the corporation may be compensated with special non-voting, no-par value, redeemable ‘founders’ shares up to 10 per cent of total capitalization which entitle the holders solely to a share in the net profits over a period of time. Shares of stock may be either in bearer or registered form but they remain registered until fully paid. For certain types of corporations, the shares must be registered. Law 2214/1994 has increased these latter categories. A major controversy of recent years in Greece relates to the implementation of Article 14 IX Const., as amended, which requires that the ownership, the financial condition and means of support of the mass media must be publicized. It provides further not only that the concentration of media is prohibited but also that the ‘basic shareholders’, directors, etc. of a medium may not hold similar positions in an enterprise that is engaged in public works or services. The idea is to prevent or limit public corruption. Law 3021/2002 sought to implement this regime by, among others, requiring that the shares of all such enterprises must be registered all the way down to a ‘natural person’. The National Council for Radio and Television was entrusted with the enforcement of these provisions through the issuance of certificates of compliance. This regime, however, was challenged by the European Commission on the ground that it interfered with the right of establishment and providing services of European companies which were owned through bearer shares or by corporate shareholders. A new statute, Law 3310/2005, modified this regime in a manner that was intended but failed to address this concern and then it was suspended by Law 3345/2005 until October 30, 2005. It has been reported that the suspension remains in effect beyond such date. Bearer shares are transferable by agreement and delivery. For the transfer of registered shares, however, a certain procedure must be followed. First, the parties must execute either a notarial instrument or an agreement certified by the tax

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authorities. Second, they both must sign and date the transfer book of the corporation. Third, a new share certificate, or modification of the existing one, must be issued. Only then is the corporation required to recognize the transfer. For shares listed on the ASE the procedure is simpler. The transferability of registered shares may be limited in the corporate charter, e.g. by requiring the prior approval of the board or the meeting of shareholders either absolutely or for specified reasons. Increases or decreases of capital generally require a charter amendment adopted by an extraordinary meeting of the shareholders (quorum of two-thirds and a vote of two-thirds of the quorum, including two-thirds of the shareholders of the same class) and are subject to similar but not in all respects identical approval and publicity requirements as the initial incorporation. Increases of capital by charter amendment need the approval of such a meeting and may involve either the bringing in of additional funds or the capitalization of available undistributed earnings or reserves. They may not take place until all already and issued and outstanding stock has been fully paid. As to form, either new shares are issued to third parties or as a stock dividend or the par value of existing shares is increased with the consent of the holders. An amendment to increase capital within the first five years may be avoided, however, if the charter already provides for increase (a) by such an extraordinary meetings of shareholders up to five times the original capital or (b) by the board, by a two-third vote of its entire membership, up to an amount equal to the already paid-in capital. In addition, such an extraordinary meeting of shareholders by itself may authorize the board by similar majorities to increase the capital up to the amount then outstanding. All related actions of the board are subject to challenge as abuses of right, e.g. if it can be shown that there was no need and the increase was intended to reduce the per centage of a shareholder who could not afford to participate.21 Further, ministerial decisions mandating capital increases of corporations in reorganization without the required shareholder approvals are contrary to Community law22 and unenforceable.23 Proportionate pre-emptive rights unavoidably attach to the issuance of all shares of stock, other than those issued for property, as well as of debt securities convertible into shares of stock. Issuing new shares by governmental intervention without respecting the pre-emptive rights of existing shareholder takes property and is contrary both to Greek law and the European Convention of Human Rights and Fundamental Freedoms and supports an action for damages.24 Pre-emptive rights may be avoided or limited, however, by the above meeting of shareholders for good cause

21. MP (Athens) 5345/2003, DEE 10 (2004) 766–767. 22. Second Council Directive 77/91 of December 13, 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with the view to making such safeguards equivalent, OJ L 26/1–13, 1977. 23. CA (Athens) 9162/1992, Hell.Dni 46 (2005) 213–218. 24. AP 795/2000, Hell.Dni 42 (2001) 131–132.

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on a proposal of the board. Further, such meeting of shareholders may authorize pre-emptive rights, for up to 10 per cent of the existing capitalization, for shares of common stock to be acquired by members of the board or employees of the corporation or its controlled subsidiaries in amounts and on terms decided by the board. Agreements whereby shareholders subscribe to increases in capitalization under guaranteed prices or on condition that the shares be listed are void.25 Reduction of capital, for the purpose either of distributing to the shareholders excess assets, or, more frequently, for adjusting the capital to the corporate realities, is subject to safeguards to protect the rights of creditors and holders of other classes of securities. First, it always requires approval by all classes of shareholders at an extraordinary meeting as above. Second, it cannot take place without approval for good cause by the supervising authorities. Third, assets may not be distributed to shareholders before all creditor rights have been taken care of. Fourth, it may not reduce the capital below the legal minimum. Debt securities (ομολογίες, omologies, obligations) may also be issued as provided in the charter or approved by the extraordinary meeting of shareholders in registered or bearer form and may be open to public subscription in a manner similar to stock except that the credit-worthiness of the issuer must also be certified. In addition to interest, when the issuance is decided by the shareholders, the return may include certain profit participation and other amounts. Debt securities may also be made convertible into common stock, but only up to one-half of paidup equity capital, by following the procedures for the increase of capital. Law 3156/2003 substantially revised the details of the issuance of debt securities. If shareholders’ equity is impaired by more than one-half, the board must call a shareholder meeting to decide whether to restore it, reduce capital or dissolve the corporation. An impairment of more than 90 per cent of capital will lead to a revocation of the corporate registration by governmental action. D.

MEETINGS OF SHAREHOLDERS (γενικές συνελεύσεις μετόχων, genikes syneleuseis metochon)

1.

Convocation

An annual meeting must be held within six months of the end of the fiscal year. Exclusive authority to call special meetings is vested in the board which is obligated to do so when the law requires it or at the request of the statutory auditors or of shareholders holding 5 per cent of paid-up capital. Meetings are held at the seat of the corporation unless the Minster of Commerce approves another location within Greece, and they elect their own president unless he is listed in the charter. A minimum 20-day notice by publication, including the full agenda, is mandatory 25. AP 1435/2005, Sur.Com.L 11 (2005) 633–636; CA (Piraeus) 907/2005, DEE 11 (2005) 1185–1191.

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unless all shareholders are present. Only matters on the agenda may be acted upon and open-ended clauses such as ‘any other business’ are not given effect. Within the ten days before the annual meeting, any shareholder may request a copy of the balance sheet (ισολογισμός, isologismos; bilan) and of the reports of the directors and of the statutory auditors. For a shareholder to attend and participate in a meeting, it is required that he deposit his shares or proxy documents at least five days in advance with the corporation or with a bank or financial institution in Greece or abroad if so provided. This requirement may be waived, however, by the meeting, and failure to waive it, as when the failing shareholders were in litigation about the shares and did not have physical possession of the certificates, may constitute abuse of right invalidating the meeting.26 At least 48 hours before the meeting, a list of shareholders entitled to vote must be prominently displayed at the corporate offices. But there is no general shareholder right to inspect the list of shareholders in any other way. This obviously impedes proxy solicitation by opposition groups even where the shares are registered. Statutory general meetings are held on certain matters of fundamental importance, especially when a charter amendment is at issue. High quorum and voting requirements are applicable to them. 2.

Quorum, Voting

One-fifth of the paid-up capital constitutes quorum at regular meetings, including the annual and the special meetings. For extraordinary meetings, however, the agenda of which is limited in the law, the minimum requirement is two-thirds. These per centages are substantially reduced if there is no quorum at the first convocation. Resolutions are adopted by the absolute or three-fifths majority of the quorum, respectively, except when a higher per centage is required by law or is provided in the charter but up to a limit of less than 100 per cent. Voting by proxy is permitted. Generally, voting may be secret or open, by ballot or on call, etc. Five per cent of the capital may request open voting by roll call. Blank votes or abstentions are counted against the resolution. There are no provisions for taking action by consent without a meeting. 3.

Authority

The exclusive authority of the meeting of shareholders extends mainly to the following: charter amendments, election of directors and statutory auditors, approval of balance sheet, dividends, issuance of stock and debt instruments (with some exceptions), mergers, extension of life and dissolution, and appointment of liquidators. The charter may also authorize the board to elect directors to complete itself for the period until the first meeting of shareholders or to fill vacancies. As part of the government supervision over corporations, its representative may attend meetings at his discretion. If only one shareholder attends, the minutes of 26.

MP (Volos) 314/2004, DEE 10 (2004) 772–773.

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the meeting must be signed also by a representative of the Ministry of Commerce or a notary but their absence does not invalidate the meeting.27 E.

BOARD OF DIRECTORS (διοικητικό συμβούλιο, dioikitiko symvoulio; conseil d’administration) AND OFFICERS

The board consists of at least three members who need not be shareholders, natural persons or citizens or residents of Greece, and elects its own chairman. The term of a director may not exceed six years at a time. Directors are elected and removable by the shareholders at a regular meeting any time at will. It is doubtful that higher per centages may be provided in the charter. The charter may name the first board. It may also contain provisions allowing up to one-third of the board to be appointed and dismissed by certain shareholders or per centage of shares who thereby lose their right to vote for the remaining directors unless they waive such special status. The charter may further impose eligibility requirements for the directors. The board or some members may be replaced by the court for serious breach of duty, including conflict of interests, on the petition of shareholders,28 but not for mere inaction.29 The courts may also appoint a temporary board when none is in place or functioning.30 The board remains in place during insolvency and bankruptcy proceedings.31 In a recent controversial judgment,32 it has been held that when the term of directors expires there is no holding over and no possibility to serve the corporation with process until the court proceeds with an appointment. However, the severity of this approach was significantly moderated by a subsequent case where it was held that the board remains in place after the expiration of its term if it so provided in the charter and, in any event, until the next general meeting of shareholders but not beyond a total period of six years.33 The names and data of the directors are entered in the Registry and are published in the Government Gazette, as is the designation of the agents authorized to receive service of process, and the corporation is bound thereby to third persons unless the latter knew of a defect. The board is required to meet at least once a month at the seat of the corporation or elsewhere as provided in the charter or with permission of the Ministry of Commerce or by unanimous consent of all the members at the meeting. A majority of the directors, but not less than three, constitutes quorum. Decisions are normally taken by a majority of the quorum. The charter may require higher per centages. Voting by proxy is allowed but only by a director

27. AP 916/2004, , August 12, 2006. 28. CA (Thessaloniki) 3570/1990, Hell.Dni 32 (1991) 1310–1314. 29. CA (Thessaloniki) 919/2004, Harm. 58 (2004) 1430–1432; AP 765/2005, DEE 12 (2006) 172–173. 30. AP (full bench) 18/2001, EEmp.D 53 (2002) 74–77. 31. SE 397/2002, DD 16 (2004) 42–43. 32. AP (full bench) 5/2004, Chr.ID 4 (2004) 553–554. 33. AP 474/2006, NoB 54 (2006) 1324–1325.

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holding only one proxy. In a recent case,34 the charter, reflecting also a prior agreement of the shareholders, provided that the decision to appoint the single general managing director (see below) required the consent of six-sevenths of the board and that a specified minority shareholder elected three members of the board. Such a shareholder had already appointed itself in such office and could block removal and replacement. Nevertheless, the majority shareholder called an extraordinary meeting of the shareholders, elected a new board and provided for the distribution of the powers of the general managing director among three persons by the board which was accomplished by a four-sevenths vote over the objections of the minority shareholder. The court held that these developments violated the charter and constituted abuses of right. The case is presently on appeal before Areios Pagos and the reporting judge has proposed reversal to the extent that the appointment of a new board by the extraordinary shareholders meeting was held to be invalid. The division of corporate management into an executive and a supervisory branch as available in France, Germany and other countries is not known in Greece. The board collegially manages and represents the corporation in all respects subject to such limitations as are provided in the charter or adopted by resolution of the meeting of shareholders. In the latter instance, however, they may not prejudice the rights of bona fide third persons. One of the most remarkable differences between the Anglo-American system and that of some Continental countries such as Greece is that in the latter the law does not require or provide for the appointment of officers. This explains why the discussion in the English language literature on the role and powers of the persons who exercise executive functions in Continental corporations is usually confused and incomplete. Generally speaking, traditional American law separates the policymaking and the executive functions but allows them to be combined in the same persons whereas Greek law places them in the same persons but allows them to be separated. The charter may provide that one or more directors or outsiders have the power to represent the corporation in general or on certain matters. Alternatively, the charter may contain a broader provision enabling the board to delegate authority to one or more of its members relating to specific matters of representation and business management.35 Whether functions relating not to business but to the structure and governance of the corporation are so delegable, for example increasing capital, filling board vacancies or approving the balance sheet, is very doubtful. It should be noted that the board maintains concurrent authority to act. Further, the board may empower a third party to act for the corporation in a particular context under the principles of agency. Recently, a panel of Areios Pagos restated the position that such authority must carry the verified signatures of the members of the board and that a copy of the resolution in the minutes, even if they

34. CA (Athens) 7119/2004, DEE 11 (2005) 175–176. 35. AP 491/1990, Hell.Dni 31 (1990) 1017.

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contain such signatures, authorizing a lawyer to appeal a decision, is not enough.36 In a subsequent case involving delegation to the corporate lawyer, because there were dissents from that position, arguing that the agent had assumed the status of a statutory representative, the matter was referred to the full bench37which decided that the lawyer’s certification of the signatures of the members of the Board on a resolution authorizing him to bring a criminal complaint was sufficient.38 A typical pattern is for the board to designate a third party as general manager (γενικός διευθυντής, genikos dieuthyntis) for purposes of management or to appoint one of its members as general managing director (διευθύνων σύμβουλος, dieuthynon symvoulos) making him in effect the chief executive officer of the corporation both on management and on representation. The board may also or alternatively appoint one of its members as special managing director to act jointly with others or on certain matters only (εντεταλμένος σύμβουλος, entetalmenos symvoulos). The general manager is hierarchically below the managing directors. All the above appointees are revocable. In any event, many of the executive functions are performed by high-level employees. Directors are required to perform their duties with the reasonable care that they exercise in their personal affairs. The burden is on them to prove that their subjective standard of care may be lower than that of the average reasonable man. The managing director is liable objectively and even for slight negligence. Directors are exonerated if their action executed a lawful resolution of the meeting of shareholders. While the specific concept of ‘business judgment’ is not used, there is little question that the directors enjoy considerable discretion in choosing alternatives when making management decisions. But their liability extends to inaction as well and failure to devote enough time and attention to the corporate affairs.39 Directors and managers are also subject to various duties of loyalty, including confidentiality and non-competition, extending to usurpation of corporate opportunities. Where unlawful competition has taken place, the profits may be recovered on a theory resembling constructive trust. Further, they must avoid conflicts of interest (absent charter authorization or prior approval by the meeting of shareholders). These duties obviously do not apply to corporations where all the shares are in the hands of one person.40 Loans, credits or loan guaranties by the corporation or a subsidiary to founders, directors, general managers or managers and their spouses and relatives are forbidden, void and subject to criminal penalties. All contracts between the corporation and such persons, or corporations managed by such persons, not concluded in the ordinary course of business, including high-level appointment 36. AP 581/2005, a summary of which appears in Areios Pagos Criminal Cases of 2005 (Athens, 2006) 132–133 [in Greek]. 37. AP 1314/2005, EEmp.D 57 (2006) 335–338; for an earlier case to the same effect, see AP 1642/2004, Poinikos Logos 4 (2004) 2144–2146. 38. AP (full bench) 8/2006, , November 10, 2006. 39. PP (Athens) 419/2005, EEmp.D 56 (2005) 308–316. 40. AP 324/1999, NoB 48 (2000) 940–943.

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contracts,41 are void if there was no prior approval at a meeting of shareholders by a two-thirds vote. Within two years of corporate formation or of an increase of capital, acquisitions of assets by the corporation from directors or founders or their relatives are void, with certain exceptions, to the extent that they exceed 10 per cent of paid-up capital unless approved by the shareholders and by the appropriate government authority. Directors generally may not vote on transactions in which they have an interest. Detailed provisions regulate director compensation. A specific amount may be provided in the charter but usually is not. The annual meeting of shareholders may add other sums and provide for a share in the net profits after deduction of legal reserves and of a 6 per cent allowance for dividends. The court, however, may reduce it if it is found exorbitant and at least 10 per cent of the shareholders voted against it. All these limitations do not apply to payments made to directors for other services rendered under employment contracts. Directors breaching their duties to the corporation are jointly and severally liable in damages. But the derivative action mechanism as such is not known in Greece and shareholders have no direct means of redress. However, the release commonly obtained at the shareholders’ annual meeting for the previous year does not cure the violation: what is needed is the lapse of two years and the approval of three-quarters of the quorum. The board itself has an obligation to sue if the wrong was intentional or if it is so requested by resolution adopted at a meeting of shareholders by absolute majority or by shareholders holding at least one-third of the paid-up capital acquired not less than three months before. The meeting, or the court on petition of the requesting shareholders, may appoint special agents to pursue the action. It has been suggested that if, within six months, no action is brought by the agents appointed by the meeting, the qualifying shareholders may, within the next month, so request the court. Shareholders may not sue for the diminution of the value of their shares due to damage to the corporation caused by directorial dereliction. F.

SPECIAL PROTECTION OF MINORITY SHAREHOLDERS

Holders of shares representing 5 per cent or more of paid-up capital are entitled to demand: (a) convocation of a special meeting; (b) one-time postponement of action at a meeting; (c) disclosure to a meeting of information on corporate business and more particularly on the amounts paid to directors, managers, employees or parties to corporate contracts within the last two years; such disclosure may be avoided only for good reason; (d) roll-call rather than secret or other form of balloting; and (e) extraordinary (‘small minority’ of legality) audit by judicial order when it appears probable that there were violations of the law, the charter or resolutions of the meeting of shareholders. If they represent more than 10 per cent, they may also petition the court for removal for cause of directors appointed by other shareholders. Finally, shareholders of at least one-third of paid-up capital not 41. AP 151/2005, Hell.Dni 47 (2006) 490–491.

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having a representative on the board are also entitled to demand: (a) disclosure to them of information on the corporate business and property, which may be refused only for a good and substantial reason; and (b) an extraordinary (‘large minority’ good management) audit by judicial order when it appears that the corporation is not properly run.42 It should be noted here that an extraordinary audit may also be required by the governmental authorities that supervise the corporate operations. G.

DIVIDENDS (μερίσματα, merismata)

Unlike US law, which leaves it to the discretion of the directors to decide if, when and how much is to be paid out in dividends, Greek law places this issue within the exclusive authority of the meeting of shareholders, and contains a full set of mandatory rules on the disposition of net profits as follows: (a) at least 5 per cent must be credited to a legal reserve until it equals one-third of the capital, intended to offset future losses; additional reserves may be set up in the charter; and (b) after deduction of the legal reserve, at least 35 per cent of the profits equal to at least 6 per cent (or higher if provided in the charter) of paid-up capital must be distributed to the shareholders as a first dividend unless waived as to the 35 per cent element by a 95 per cent and entirely by a 100 per cent vote of the shareholders. The shareholders meeting may decide by a vote of 80 per cent of the paid-up capital to declare only a 6 per cent dividend, in which case the remaining part of the 35 per cent may be capitalized and distributed as stock dividend. Dividends may be paid out of current or retained profits but not out of capital surplus or the legal reserves. Beyond the first dividend, distribution takes place as provided in the charter. In the absence of such provision, all net profits must be distributed as dividends. Stock dividends beyond the first dividend may be paid by distributing shares or increasing the par value of existing shares, following the procedures for increasing the corporate capitalization. No dividends may be paid if capital is or will become impaired. Stock splits and reverse splits require charter amendment. The general meeting of shareholders may decide to distribute some of the profits to the employees in cash or in shares as explained above. Corporations listed on the exchange may also grant employee stock options. H.

STATUTORY AUDITORS (ελεγκτές, elengktes) FINANCIAL STATEMENTS

AND

The financial statements to be prepared for every annual meeting of shareholders include the balance sheet and the profit and loss statement. The law requires the appointment at the annual meeting of shareholders of two statutory auditors (or one if he is a certified public accountant, or CPA) and two alternates and the fixing 42.

CA (Thessaloniki) 1017/2004, Sur.Com.L 11 (2005) 128–132; CA (Athens) 7013/2005, DEE 11 (2005) 1183–1184.

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of their compensation. Listed corporations, corporations in certain fields and those over a certain size must use a CPA. These persons follow corporate accounting and documentation throughout the year, review and certify the financial statements and report to the next meeting. They are empowered to make recommendations to the board but, beyond that, to blow the whistle to the Ministry of Commerce or prefecture if they detect a violation of the law or of the charter or even to the district attorney for criminal law infarctions. They may also demand the convocation of a special meeting of the shareholders. Their liability based on fault may not be contractually reduced. These auditors are less dependent on management than their US counterparts and they are supposed to act as watchdogs for the shareholders and the public interest. On the other hand, the control of the government over the CPA organization raises questions of independence in a different sense. The law prescribes in substantial detail the form of financial statements and the major classifications to be adopted in drawing up the balance sheet. In addition, the law requires their publication before the shareholders meeting in the Government Gazette and in two newspapers. Finally, the financial statements require shareholder approval. Presidential Decrees 409/1986 and 498/1987 conformed Greek corporate law to the basic requirements of the Fourth and the Seventh Directives.43 These provisions have been added as Articles 90–109 of Law 2190/1920. Extensive and detailed consolidated statements must be prepared for all corporations, close corporations and limited partnerships by shares which are linked together either by parent-subsidiary ties or by other methods of control, for example management contracts. Small enterprises are excluded. Consolidation is required even if some of the enterprises are not subject to Greek law. However, a wholly-owned Greek subsidiary of a European Union company which consolidates its accounts under the law applicable to it need not consolidate under Greek law as well. It should be also noted that the consolidated statements must be certified by one or more CPAs and are subject to extensive publicity requirements. I.

TRANSFORMATION, CONSOLIDATION, DIVISION, DISSOLUTION, LIQUIDATION (μετατροπή, metatropi; συγχώνευση, synchoneusi; διάσπαση, diaspasi; λύση, lysi; εκκαθάριση, ekkatharisi)

Transformation of the corporation into a close corporation without loss of continuity and legal personality may be obtained by: (a) decision of extraordinary meeting of shareholders (two-thirds quorum-vote-by-two thirds); (b) notarial instrument; (c) appraisal of the assets by the committee as per capital contributions in kind;

43.

Fourth Council Directive 78/660 of July 25, 1978 based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies, OJ L 222/11–31, 1978, and Seventh Council Directive 83/349 of June 13, 1983 based on Article 54 (3) (g) of the Treaty on consolidated accounts, OJ L 193/1–17, 1983.

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and (d) registration and publicity. Transformation into a partnership form is not possible. The law contains extensive regulation of the substantive, financial and procedural aspects of consolidation and division which are too detailed to be summarized here effectively. Greece has extensively amended and amplified its corporate law relating to (a) consolidation through long and short-form merger (absorption or formation of a new corporation) or acquisition of all the assets of another corporation(s) and (b) division (break-up or spin-off; see Presidential Decree 498/1987). Greek law is consistent with the Third and the Sixth Directives44 which impose disclosure requirements as well as protection of creditors and employees. The new provisions, which are quite comprehensive in their treatment of the entire subject of consolidation and division, appear in Articles 68–80 and 81–89 respectively added to Law 2190/1920. Division was newly instituted in 1987. They may involve only corporations, not a corporation and other types of companies, and may take the form either of a merger of one into another or of a purchase of assets or the formation of a new corporation or the reverse. The related agreements require approval of the shareholders of all corporations at extraordinary meetings, as well as of the Ministry of Commerce or prefecture, and substantial notice and publicity requirements must be met. Dissolution of a corporation takes place when: (a) its term has expired; (b) it has been declared bankrupt; or (c) it is so decided by the shareholders at a meeting where certain voting requirements are met. According to the prevailing view, the charter may not provide additional or different grounds for dissolution. In addition, dissolution may be caused by a revocation by the prefect of the decision approving formation on the ground that: (a) the required capital was not paid in at formation; (b) directors or managing persons sentenced to prison terms for actions related to corporate matters have not been removed from office; (c) corporate book net worth falls below one-tenth of paid-up capital; or (d) balance sheets for three or more years approved by the shareholders have not been duly submitted. Dissolution, except for bankruptcy, is followed by winding up and liquidation. Liquidators may be named in the charter otherwise are appointed at a meeting of shareholders. Their task is to make an inventory of and sell the assets, complete pending transactions, make the required publicity and settle all claims and debts, distributing the residue, if any, in cash to the shareholders. Pending liquidation, which must be completed in five years, the board becomes inoperative and the liquidators function in its place but the meeting of shareholders retains its powers being the corporate organ to which the liquidators are accountable. In certain contexts, the liquidators are appointed by the prefect or the court. Within four months of dissolution, shareholders or creditors may petition the court to set the price below which certain corporate assets may not be sold. 44. Third Council Directive 78/855 of October 9, 1978 based on Article 54 (3) (g) of the Treaty concerning mergers of public limited liability companies, OJ L 295/36–43, 1978, and Sixth Council Directive 82/891 of December 17, 1982 based on Article 54 (3) (g) of the Treaty, concerning the division of public limited liability companies, OJ L 378/47–54, 1982.

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Phaedon John Kozyris PENAL PROVISIONS

In addition to the general penal rules which punish fraud, embezzlement, fraudulent bankruptcy, etc., and to other laws which outlaw particular conduct, e.g., relating to taxes, certain special crimes are defined in Articles 54–63 of Law 2190/1920, as amended, intended to strengthen the enforcement of the obligations of the founders, the directors, the statutory auditors and even the shareholders toward the state, the shareholders and the creditors. It is a crime to act on behalf of a non-existent or unlicensed corporation (Art. 54). Penalties are provided for: (a) a founder, director or manager knowingly submitting false declarations to public authorities relating to the subscription, pricing and payment for shares and to the balance sheet (Art. 55); (b) a founder, director or manager knowingly making false public statements materially affecting the subscription for securities of the corporation or their price (Art. 56); (c) a person intentionally violating the rules relating to the balance sheet or making improper distributions of profits or interest; (d) a person failing to convoke the general meeting of shareholders or disobeying directions by the government supervisors (Art. 57); (e) a person knowingly issuing or using forged certificates of deposits of shares for the purpose of voting (Art. 58); (f) a director violating certain rules relating to the payment of the corporate capital and to providing certain information; (g) a person violating the rules requiring the preparation of the corporate books and financial statements in Greek and anyone causing the corporation to make illegal loans or credits to founders, directors, etc. (Art. 58a); (h) a person knowingly and unlawfully selling or buying a vote (Art. 59); (i) a person voting or facilitating a vote of shares not owned and without authority (Art. 60); (j) a director, manager, liquidator, employer or agent of the corporation failing to supply or falsifying documents required to be submitted to the Ministry of Commerce or interfering with the exercise of supervision by the Ministry (Arts 61, 62); (k) a person violating certain rules on publicity and reporting (Art. 62a); (l) a government employee exercising supervision not keeping information confidential or using it to trade on the exchange (Art. 63); (m) a statutory auditor negligently certifying the corporate balance sheet (Art. 63b); and (n) a director, manager or employee of the corporation knowingly and intentionally failing to provide information to the statutory auditors or impeding their work and a statutory auditor not keeping the information confidential or not disclosing disqualifying information (Art. 63c). It should be mentioned that these provisions, many of which also apply to the close corporation, are not often enforced in practice. K.

CONCLUSION

To summarize, the legal regime of a Greek corporation is significantly different from that of an American one in the substantial formalities (government approval, publicity, and minimum capitalization) required for its organization; the combination of charter and bylaws into one instrument and the lack of significant

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power of the directors over it; the virtually exclusive powers of shareholders over the terms and issuance of securities, the declaration of dividends and the appointment of the statutory auditors; the requirement of proportionality between economic and voting rights; the lack of provisions for executive management through officers and the power given to the directors to set up flexible internal structures; and the absence of the derivative action mechanism as such. Currently, a major effort is being undertaken to reform Law 2190/1920 and a Committee of Experts, set up in the Ministry of Development, has finalized a project involving extensive changes article-by-article. It is expected that eventually an official draft will be introduced in Parliament and the chances of approval are high. It is neither possible nor advisable, in view of the preliminary nature of the current efforts, to summarize the proposal here. However, some items will be highlighted. First, and foremost, many of the governmental approvals or permits or interventions or participations, especially at formation, dissolution, etc., are abolished for the smaller corporations and the same applies to expensive and useless publicity requirements. Second, a number of mandatory provisions are made optional and subject to regulation by charter provisions or amendments. Third, shareholder rights are enhanced. The statutory minority right of one-third is reduced to one-fifth and the one of one-twentieth is extended to holdings of nominal value of EUR 300,000. Further, the right to certain information is given to all shareholders. The preliminary deposit of shares to participate in shareholder meetings is abolished and, for listed shares, the alternative of a record date may be selected. For small corporations, the shares need not take the form of certificates of title. Pre-emptive, conversion, repurchase, profit participation and similar rights of shares are expanded. Book-building for the issuance of shares is allowed. However, additional charter restrictions on the transferability of shares are made possible. Generally, proxy voting by shareholders and directors is facilitated. III.

CLOSE CORPORATION (εταιρία περιορισμένης ευθύνης, ΕΠΕ, etairia periorismenis euthynis, EPE; société à responsabilité limitée; Law 3190/1955, Presidential Decree 419/1986)

This corporate form, meaning literally, and often called, ‘limited liability company’, is quite common for smaller businesses and family enterprises. It is regulated by Law 3190/1955 as amended. A.

FORMATION AND CHARTER

The charter must be in notarial form executed by two or more persons and then published in the Government Gazette. Minimum capital is set at EUR 18,000 but: (a) it must be subscribed in full and paid in at formation; and (b) at least half must

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be paid in cash. In drafting the charter, it is important to include all the provisions that depart from the permissive statutory pattern of regulation. The charter needs no ministerial approval but must be listed with the local court and entered in registry kept by its clerk. B.

CAPITAL

Instead of shares, the close corporation issues ‘parts’ (μερίδια, meridia) which are transferable unless, as is often the case, the charter prohibits or limits inter vivos transfers or provides for preferential purchase at death by the remaining members (εταίροι, etairoi). The transfer, however, may not take place by delivery but only by notarial instrument. In fact, no negotiable instruments of any kind, e.g., debentures, bonds and shares of stock, are permissible. The par value of the parts must be in multiples of EUR 30. Only one kind of part may be issued but the charter may provide for all types of variations and preferences in the rights attaching to the part, especially the economic ones, so that in a certain sense each part may become a different class of stock. The principle of ‘one part one vote’, however, must be respected. All parts may be held by one person but if the corporation becomes insolvent, he becomes prospectively liable for corporate obligations as a partner for the duration and the corporation may be dissolved. C.

MEETINGS OF MEMBERS

The annual meeting is called by the administrator (see below, under D) and must be called at the request of any member. Special meetings are called at the request of holders of 5 per cent of the capital. If the administrator fails to call a meeting, the requesters may obtain the permission of the court to convene it themselves. The partnership aspect of the close corporation emerges in the voting requirements. Unless the charter provides otherwise, ordinary resolutions require approval by the absolute, and extraordinary ones by a three-quarter, majority of a similar quorum of the members not only per parts but also per capita. Extraordinary resolutions are needed for: (a) increases or decreases of capital; (b) amendment of the charter other than for the appointment or removal of an administrator; (c) activation of the mandatory contributions to capital to make up capital impairment as provided in the charter; and (d) dissolution. A unanimous vote is required for any changes in the rights, obligations and responsibilities of members or for releasing the administrator from the non-competition obligation. Proxy voting is permitted. Actions by the corporation against the administrator or other members for breach of duty require member authorization by an ordinary majority. Nevertheless, members and third parties may sue the administrator themselves if such authorization has been refused or not acted upon. Members have full rights of information on corporate business and rights of inspection of the corporate books.

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MANAGEMENT AND INTERESTED TRANSACTIONS

Theoretically, the close corporation is managed by all the members acting unanimously. In practice, it is almost always run by one or more administrators (διαχειριστές, diacheiristes), who need not be members, natural persons, citizens or residents, appointed in the charter or at a meeting of the members and having such authority as provided therein. The administrator is removable by the meeting of members at will without prejudice to his contract rights, if any, except that administrators who are also members and who have been appointed in the charter may be removed only for an important reason with the permission of the court. All appointments and removals must be published in the Government Gazette. Loans to members may be made but loans from members may not be secured on corporate assets and are subordinate to other indebtedness. The non-competition obligation may be extended by the charter to the members. For smaller close corporations, the appointment of statutory auditors is not required. The financial statements are prepared by the administrator and submitted to the meeting of the members for approval. Close corporations which belong to a corporate group are required to be included in the consolidated financial statements under the Seventh Directive implemented by Presidential Decree 498/1987 (see above, Section II H and ftn. 43). E.

DISTRIBUTION OF PROFITS

Beyond the 5 per cent legal reserve requirement for one-third of capital, all the net profits are distributed unless the charter provides otherwise. The 1992 tax reform has subjected the close corporation to a corporate income tax but the principal members are given favorable tax treatment (see Ch. 19, Section II C). F.

RETIREMENT OF MEMBERS – DISSOLUTION, LIQUIDATION, MERGER, TRANSFORMATION

In view of the usual non-transferability of his parts, a member may become lockedin and be oppressed by the majority. There are, however, many avenues of relief. The charter may provide for a method of withdrawal but, in addition, any member has the right to retire for an important reason with the permission of the court, in which case he must be paid the appraised value of his parts.45 Furthermore, the majority may expel and buy out a member, again for an important reason, not necessarily fault, as determined by the court. In addition to the grounds provided for in the law or the charter, including bankruptcy, death and expiration of time, a close corporation may be dissolved by extraordinary resolution of the members or by the court for an important reason 45. For a restrictive view on valuation, see CA (Athens) 3434/1990, Hell.Dni 32 (1991) 818.

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on petition of 10 per cent or more of its membership or because of concentration of all the parts in one member. Incidentally, Presidential Decree 279/1993 now authorizes the creation or continuation of a close corporation by one person under a simplified format. If one-half of the capital is lost, the administrator is required to call a meeting to decide on dissolution or reduction of capital. Liquidation ordinarily is conducted by the administrator. A close corporation may merge into another such corporation in a manner quite similar to that for ordinary corporations. A close corporation may be transformed into an ordinary corporation upon decision taken by extraordinary majorities of the members and provided that certain formalities, paralleling those of formation of a corporation, be complied with. Dissenting members are automatically relieved of all restrictions on the transferability of their parts. The attractiveness of transformation is its tax-free status which requires, however, that at least 75 per cent of the shares in the new corporation, representing old capital, be in registered form and non-transferable for five years. In conclusion, the Greek close corporation differs from the typical American one in the requirement for minimum capitalization, the absence of a maximum limit on membership, the detailed provisions for management, the existence of some right of withdrawal of members and the easier availability of dissolution. IV.

GENERAL PARTNERSHIP (ομόρρυθμη εταιρία, OE, omorrythmi etairia, OE; société en nom collectif; Arts 18–22, 24, 39, 41–44, 64 LC)

The law governing general commercial partnerships in Greece is similar or identical to Anglo-American law in most major respects, such as unlimited joint and several personal liability of partners; non-transferability of interests without unanimous consent or prior agreement and dissolution on death or bankruptcy of a partner (intuitus personae); authority of any partner to bind partnership with third parties regardless of internal limitations; control and management by all collectively unless otherwise agreed; and the like. A clause in the agreement that a majority vote suffices, in case of doubt, is interpreted on a per capita rather than per parts basis. A managing partner is often appointed and has the power to use agents to carry out the partnership business.46 A conceptual difference is that the partnership is considered in all respects, not just some, as an entity which means that the ‘aggregate’ theory is not recognized. This generally simplifies matters in terms of making agreements, acquiring property and suing and being sued. A practical difference of some importance is that a writing is required for its formation as a legal entity which includes data on its name, the partners, the commercial purpose to be pursued (compare the ‘business for profit’ requirement in American law), the share in profits and losses, the duration (which may be indefinite) and the management. Two persons (natural or 46. AP 1462/1990, Hell.Dni 33 (1992) 78.

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legal) are needed but no minimum capitalization is required. This writing must be filed with the court within 15 days of formation and the name must also be registered with the Chamber of Commerce. The Law on Commerce project of 1981 would also recognize the informal partnership but without legal personality. The tax on formation is about 1 per cent. Taxation of the partnership has been drastically changed in recent years, becoming similar to that for an ordinary corporation (see Ch. 19, Section II C ). Partnership creditors may pursue the partners individually, without joining the others or the partnership, and primarily, without the necessity of first going against the partnership or showing that it is insolvent. What is more, the partners are bound and subject to direct execution, even though they had not been made parties to the related actions, on judgments against the partnership on res judicata principles (see Ch. 16, Section IX B). The partnership agreement may vary the ‘equal-share in profits and losses and assets regardless of contributions’ principle and create drawing rights. Any partner has the power to dissolve a partnership of indefinite duration at will by giving notice thereof. If the duration is set, however, he may be liable for damages if he acts in an untimely manner and without important reason. Such dissolution, or for other reasons, e.g. death, leads to liquidation and termination, not to the continuation of business among the remaining partners, unless otherwise agreed. But the mere agreed withdrawal of a partner or the admission of a new partner does not automatically dissolve the partnership. A general or limited partnership may be transformed into a close corporation. Further, if no general partner is a natural person, they are directly subject to some of the rules applicable to such corporations (Presidential Decrees 419/1986 and 326/1994, implementing Directive 90/60547 by adding Article 50(a) to Law 3190/1955). Special mention should be made here of the law governing ‘civil partnerships’ (see Ch. 6, Section II J), which applies residually to general and limited partnerships as well. V.

LIMITED PARTNERSHIP (ετερόρρυθμη εταιρία, EE, eterorrythmi etairia, EE; société en commandite; Arts 23 et seq., 38 LC)

A limited partnership is in essence a general partnership with the interjection of one or more limited partners who are risking only their contributions as is the case in Anglo-American law. Since the general partner may be a corporation or any legal entity, the limited partnership form may insulate all natural persons from liability. Failure to comply with the formation requirements which are the same as with the general partnership, in particular with the filing obligations, may produce dire consequences, the limited partner being treated then as general. Contrary to traditional American law, a limited partner may participate in management 47. Council Directive 90/605 of November 8, 1990 amending Directive 78/660 on annual accounts and Directive 83/349 on consolidated accounts as regards the scope of those Directives, OJ L 317/60–62, 1990.

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without losing his status but only in the internal dimension, that is with his copartners and not in representing the company in its relations with others. Other significant differences, relating mostly to the equal treatment of general and limited partners, include: (a) the possibility of the limited partner contributing services, not only property; (b) (disputed) dissolution upon his death or bankruptcy; (c) requirement of his consent for the admission of any new partners; and (d) non-preference in the distribution of assets at dissolution and liquidation. Greek law now also recognizes a special form of limited partnership (κατά μετοχές, kata metoches; by shares, par actions), rarely used in practice because of its bad reputation, where the parts of the limited partners are transformed into negotiable instruments, even bearer shares. Such partnership is also subjected to some of the rules governing the close corporation as explained above. VI.

SILENT PARTNERSHIP (αφανής εταιρία, afanis etairia; société en participation; Arts 47–50 LC)

The most important features of this form of partnership are that the silent or dormant partner or partners have no (a) representative authority, i.e., no power to act for it with third parties; (b) property but only contract rights in the partnership assets; and (c) direct personal liability to third parties. Unless the agreement provides otherwise, all partners participate in internal management equally and have an equal share in profits and losses. The silent partnership has no name and no legal personality and requires no special formalities or publicity. For the non-silent partner, however, to avoid being taxed individually, the agreement among the parties must be deposited with the tax authorities. It should be pointed out that it differs from a sub-partnership, that is a regular partnership whose property consists of partnership interests, and from an informal or unpublished general partnership which is subject to the general partnership rules with some modifications and which is under an obligation to proceed with the formalities and make the required publications. In terms of function, the silent partnership is sometimes used to accomplish objectives achieved in the Anglo-American system through a business trust. BIBLIOGRAPHY A.

IN GREEK

Among the standard works on commercial law in the Greek language, also covering business associations, should be listed: I. Anastassiadis and K. Rokas, Greek Commercial Law, vol. II (5th edn, Athens, 1949). K. Karavas, Commercial Law, vol. I part 1 (Thessaloniki, 1947), part 2 (Thessaloniki, 1950), vol. II part 1 (Athens-Thessaloniki, 1952).

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K. Karavas, Manual of Commercial Law, vol. I (2nd edn, Athens-Thessaloniki, 1962). K. Karavas (with K. Pampoukis and A. Kiantou-Pampouki), Manual of Commercial Law, vol. II part (a) (Athens-Thessaloniki, 1965). A. Kiantou-Pampouki, Manual of Commercial Law, vol. I (2nd edn, Thessaloniki, 1975). P. Perdikas, Manual of Commercial Law (Athens-Thessaloniki, 1952). T. Petimezas, Commercial Law, vol. I (Athens, 1925). I. Rokas, Commercial Law – General Part (3rd edn, Athens-Komotini, 2002). A. Tsirintanis, Elements of Commercial Law, vol. II (6th edn, Athens, 1964). In recent years, there has been a proliferation of massive works in Greek dealing with business associations. They include, in particular, the ten-volume series written by distinguished scholars and practitioners in corporate law, edited by Professor E. Perakis (Athens, 2000–2005), and J. Dryllerakis’ Corporations (Athens, 2003). Other books are listed below on a selective basis: E. Alexandridou, Law of Commercial Companies, vol. A: Personal Companies (Thessaloniki, 1995), vol B: Capital Corporations (Thessaloniki, 1995). B. Antonopoulos, Law of Commercial Companies, vol. A: Personal Companies (Thessaloniki, 1977), vol. B: Capital Corporations (2nd edn, AthensThessaloniki, 1998). A. Dimitrakas, Practical Advisor for Corporations, vols A, B (Athens, 2005). L. Georgakopoulos, Company Law, vol. I (Athens, 1965), vol. II (Athens, 1972), vol. III (Athens, 1974), vol. IV (Athens, 1991). L. Georgakopoulos, Companies and Related Enterprises (Athens, 1996) [manual]. E. Gogolina-Oikonomou, Contracts Between Directors and the Corporation (Thessaloniki, 1990). D. Iliokautos, Practical Guides to Companies (Athens, 2003–2004–2005). S. Kintis, Nullity and Nullification of Resolutions of the Meeting of Shareholders of a Corporation (Athens, 2004). L. Kokkinis, Insolvency of Capital Companies and Liability of Management to Creditors (Athens-Komotini, 2001). E. Levantis, Law of Commercial Companies, vols I–IV (Athens; corporations: 1995, 1997, 2000, close corporations: 1997 and personal companies: 1990, plus some supplements). A. Liakopoulos, Lifting the Corporate Veil in the Cases (Athens, 1988). M. Liontaris, Corporations (Athens, 2002). Ch. Mastrokostas, The Extent of the Authority of the Management of Corporations and Close Corporations to Represent Them (Athens, 1995). G. Mihalopoulos (ed.), Law of Corporations (7th edn, Athens, 2004). S. Mouzoulas, Corporate Governance (Athens-Thessaloniki, 2003). K. Pampoukis, Law of Commercial Companies, General Part (Thessaloniki, 1979).

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K. Pampoukis, Law of Corporations, vol. I (Thessaloniki, 1991), vol. II (Thessaloniki, 1994). K. Pampoukis, The Internal Controls in the Corporation (Thessaloniki, 1996). I. Passias, The Law of Corporations, vols A, B1, B2 (Athens, 1955, 1969; reprinted in 2003). E. Perakis (ed., with many contributors), The Law of Corporations, vol. I, parts (a) (Athens, 1992) and (b) (Athens, 1991), vol. II (Athens, 1991). I. Rokas, Introduction to the Law of Commercial Companies (Athens, 1996). N. Rocas, Commercial Companies (4th edn, Athens, 2004). E. Skalidis, Law of Commercial Companies (Thessaloniki, 2000). N. Tellis, Signatures and Responsibility of the Managers of Close Corporations (Thessaloniki, 1996). A. Toussis, The Corporation and the Close Corporation (Athens, 1971). G. Triantafyllakis, Increasing Capital in the Corporation with Exclusion of the Preemptive Right (Athens-Komotini, 2004). D. Tzouganatos, Insufficient Capitalization in Capital Companies (Athens, 1994). J. Velentzas, Corporations (Thessaloniki, 1999). Greek language periodicals which deal extensively with corporate law are (a) Review of Commercial Law (Επιθεώρηση του Εμπορικού Δικαίου, Epitheorisi tou Emporikou Dikaiou), edited by N. and I. Rocas; (b) Survey of Commercial Law (Επισκóπηση Εμπορικού Δικαίου, Episkopisi Emporikou Dikaiou), edited by K. Pampoukis; (c) Law of Enterprises and Companies (Δίκαιο Επιχειρήσεων και Εταιριών, Dikaio Epichiriseon kai Etairion), edited by L. Georgakopoulos; and (d) Bulletin of Corporations (Δελτίον Ανωνύμων Εταιριών & ΕΠΕ, Deltion Anonymon Etairion & EPE), edited by I. Anastassopoulou. B.

IN LANGUAGES OTHER THAN GREEK

I. Anastassopoulou, Corporations and Partnerships in Hellas (Athens, 1993). D. Gofas, Loi codifiée 2190/1920 sur les sociétés anonymes (Athens, 1992). L. Kotsiris, Greek Company Law (3rd edn, Athens-Thessaloniki, 2001). P. Kozyris, ‘Business Associations’ in Guide to Doing Business in Greece (Washington, D.C., 1996). P. Kozyris and Ch. Mastrokostas, ‘Corporate Governance: The Internal Responsibility of Corporate Directors’, RHDI 51 (1998) 163–187. H. Xanthaki, The Establishment of Foreign Corporations in Greece with Particular Reference to the Compliance of Greece with the Law of the European Union (Athens, 1996). Since a comparative law perspective would be helpful in understanding the information contained in this Chapter, reference should be made here to certain of the excellent Chapters in the International Encyclopedia of Comparative Law dealing

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with company law issues: A. Conard, Fundamental Changes in Marketable Share Companies (1972); B. Grossfeld, Management and Control of Marketable Share Companies (1973); R. Buxbaum, The Formation of Marketable Share Companies (1974) and J. Heenen, Partnership and Other Personal Associations for Profit (1975). For a more recent study, see R. Kraakman et al, The Anatomy of Corporate Law: A Comparative and Functional Approach (Boston, 2004). Further, in a creative study comparing the corporate law of all 50 States with the first eight Community Directives on 131 issues, it was found that 95 European provisions, relating mostly to employees, creditors and stakeholders, had no US counterpart, 14 existed in all States and 22 were present in some States: W. Carney, The Political Economy of Competition for State Charters, J.Leg.Studies 26 (1997) 303–329.

Chapter 13

Private Maritime Law Anthony M. Antapassis*

I.

MEANING AND OBJECT

In the context of the Greek legal order, maritime law (ναυτικό δίκαιο, nautiko dikaio, considered in its wide sense) contains special rules regulating the relations created during or originating in the function or use of ships or static floating structures employed as a means of providing services, executing projects, and developing activity on water. However, the fact alone that a relation has taken place on water is not sufficient for its regulation by the special rules of maritime law, and thus to be regarded as a maritime relation. It is also required that such relation is relevant to a ship’s or static floating structure’s use on water. For example, relations deriving from pollution of the marine environment caused by sewage generated by a terrestrial industry plant are not maritime relations. The definition of maritime relations and, in essence, of the limits of maritime law, presupposes the definition of the meaning of ship and static floating structure (see below, under A). Just as terrestrial ones, maritime relations derive either from activities among individuals or companies, or between individuals and companies and the state or a corporation of public law. These activities are of a private nature in cases when

* Professor of Law, Athens University. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 291–316. © 2008, Kluwer Law International BV, The Netherlands.

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the state or a public corporation effects commercial or industrial actions; they are of a public nature in cases when the state or a public corporation exerts public authority. Moreover, because of the frequent alternation of laws and jurisdictions, particularly on behalf of the ship, maritime relations have an international character. That is the reason why classification of maritime relations may only be correct when their special character, private or public, domestic or international, is taken into account (see below, under B). A.

SHIP AND STATIC FLOATING STRUCTURE

A structure that is capable of floating on water and designed to move thereon and is also capable of navigating gathers all the essential elements of a ship, under the scientific or technical meaning of this term. In the modern era, the number and significance of human structures that are capable of navigating, remaining in a stable position while executing a project or providing a service, is increasingly growing. Navigation is of secondary importance to these structures. That is the reason why, in the scientific or technical sense, these structures are not considered to be ships but rather static floating structures. Article 4 of the Code of Public Maritime Law (CPub.ML) characterizes these structures as ‘auxiliary floating structures’, although their purpose is not always auxiliary to shipping. However, in order to define their scope of application, several statutes provide definitions of the ship. For the same reason but on a much smaller scale, the law also defines the static floating structure without, however, applying this term. Usually, the law limits itself in equating floating structures to ships or in providing for the application by analogy thereon of provisions relating to ships. Nevertheless, static floating structures can never have the same legal treatment as ships. The legislative definition of the ship does not necessarily coincide with the scientific or technical one as the law may add other elements or terms usually relevant to the shape, size, means of propulsion, field of display and the nature of the activity in which the ship is used. As a rule, the legislative definition of the ship, in view of the expediencies that law is to serve, is significantly more restrictive. That is the reason why, in view of particular laws such as the Code of Private Maritime Law (CPr.ML), floating structures, other than ships, are not only those that remain stable but also those, whose purpose is navigation, but do not possess one or more elements of the legislative meaning of the term. Article 1 II CPr.ML uses the expression ‘floating structures’ so as to define them. In a scientific or technical view, the ship and the floating structure do not necessarily have a specific shape. They usually have the shape of a hull. In addition, they do not necessarily have a specific size. This, however, does not mean that smallsized ships and static floating structures are not treated differently by the law. A ship is both a vessel that moves under its own means of propulsion and a vessel that is towed or thrust by another self-moving vessel. Thus, oar boats and sailing boats, as well as motorboats, are considered as ships under the scientific or technical meaning of the term.

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The ship and the static floating structure can function not only on the water surface but also beneath it. In this way, submarines and bathyscaphs also qualify as ships. The same does not apply, however, to hydroplanes, even if they move on water during take-off from the sea or touch-down, since these movements are only used in order to enable them to fly. Nevertheless, hydrofoils are ships because through their pedals and propellers they are in constant touch with water and they move on its surface. Hovercrafts constitute a particular category of vessels that needs to be the subject of special legal status. As a rule, a structure becomes and qualifies as a ship or static floating structure from the time of its launching on water. One under construction is a mobile object possessing its specifications without, however, being one as yet. A ship or static floating structure ceases to exist when it is definitely deprived of its ability to float, i.e. when it has been reduced to a wreck as examined in concreto. Ships and static floating structures are normally used at sea. Scientifically speaking, the sea is a unified whole. That is why the particular marine surroundings (i.e., high seas, gulfs, bays, ports) do not play a role in its characterization. From a legal point of view, the sea is divided into areas or zones subject to various legal rules, under an age-long development in the context of international law, predominantly formulated in the United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), that entered into force on November 16, 1994 and was ratified by Law 2321/1995 (GG A 136). Ships or static floating structures are also used in rivers or lakes, natural or artificial ones, such as, for example, the Pamvotida Lake (where the most important inland navigation in Greece takes place). In any case, every structure floating on sea and on water in general is not necessarily a ship or a static floating structure. It must be launched on water so as to fulfill a specific project or service. The way in which the project is executed or the service is provided is important only in distinguishing the ship from the static floating structure. Public ships or static floating structures intended to directly serve public purposes, such as war ships, combatant and auxiliary ones of the navy, the ships of the marine financial police (prosecuting of smuggling), of port police (ships on patrol of the shores), etc. are not subjected to the provisions of private maritime law. They are not subjected to the provisions of public maritime law either, as certain characteristics of these ships, such as their building, their staffing with persons having a special connection to the state and subjected to the rules of military hierarchy, combined with the use of these ships for the direct fulfillment of basic public purposes, are quite different from the framework set up by general public maritime law rules. On the contrary, public ships or static floating structures used for the execution of deeds of a commercial or industrial character, thus indirectly fulfilling public purposes through the income derived therefrom, are subject to the provisions of both private and public maritime law (Necessity Law 2243/1940 on the disposal of auxiliary navy ships at public purposes; Convention relating to the immunity of public ships, see below, Section II B 1).

294 B.

Anthony M. Antapassis PRIVATE, PUBLIC, NATIONAL, AND INTERNATIONAL RELATIONS

Maritime law is a complex branch of law, including rules of private, public, national and international law. Private maritime law applies mainly to commercial relations created by the function or exploitation of ships on water. These relations constitute the core of maritime legislation and were initially contained in the Law on Commerce (Second Book, Arts 226–524). It is those provisions that will be examined in the present context. Modern states have sought to regulate and protect shipping by enacting several rules of public law. Those rules constitute the system of public maritime law and include particular provisions of administrative character (administrative maritime law), of fiscal and tax character (financial maritime law) and of criminal control (criminal maritime law). To a great extent, the examination of administrative maritime law takes place within the context of private (i.e. commercial) maritime law, as many of the administrative rules are intimately connected to the basic institutions concerning the exploitation of a ship or static floating structure. The special development of financial maritime law usually takes place within the context of fiscal law. Thus, Law 27/1975 concerning taxation of ships, imposition of contribution for the development of shipping, settlement of foreign businesses and regulation of similar issues specifically regulates the tax imposed on the ship-owner’s income. Maritime relations are also developed between states, in peace and wartime alike. Such relations are regulated by rules that are distinguished from those of public international law because of their special object. This category includes special rules regulating the exertion and exercise of public authority in marine zones and generally their use (law of the sea). Moreover, the international character of maritime relations has led to the enactment of special provisions determining the law applicable thereon (Arts 9, 252 CPr.ML; Art. 2 of Law Decree 3899/1958 concerning preferential ship mortgage). In addition, there are provisions that refer to the settlement of disputes arising out of maritime relations (Arts 12 III, 35, 47, 50, 51, 90 et seq., 211, 214, 233, 242, 251, 255 CPr.ML; Art. 51 of Law 2172/1993). These provisions are distinguished from the general procedural provisions because of their special object. This fact has led to a debate on the existence of procedural maritime law. II.

SOURCES

The inherent characteristic of maritime relations is that they are subject to high risks intrinsic to the sea environment, in which ships and other structures are destined to float. Additionally, the fact that Greek ships travel around the world following the demands of the charter market results in the inability of land-based ship-owners to exercise effective control thereon and in creditors not being able to effectively pursue their claims. The perils of the sea and the mobile character of ships have compelled the application of special rules to maritime relations. These

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rules are contained in both national (below, under A) and international (below, under B) legislative texts. A.

NATIONAL SOURCES

The main national sources include the CPr.ML and the CPub.ML. Also, the deeds attesting registration of ships as foreign capital constitute important sources of the regulation of maritime relations. Finally, the general rules and principles of law complement the regulation of maritime relations. 1.

The Code of Private Maritime Law

The CPr.ML (Law 3816/1958) entered into force on 1 September 1958. It is definitely a progress in comparison with pre-existent law. However, its adjustment to the recent views of legal authority, the internationally unified rules of maritime law and the needs of the maritime trade has not been all too successful. The provisions of the CPr.ML were deeply affected by the Civil Code (which entered in force on February 23, 1946) and so maritime law distanced itself from the common-law approach, to which Greek ship-owners were traditionally accustomed. At the same time, the CPr.ML was affected by the tendency of its drafters to avoid logical distinctions and scientific speculations. In light of the above, the turbid regulation of charter and carriage of goods contracts, lack of any kind of reference to the direct bill of lading and orders of delivery, non-regulation of sub-charter and of towing contracts, the clause of withdrawal from the charter party, etc. are indicative of the above. It is for this reason that the CPr.ML cannot be regarded as a legislative corpus characterized by originality. Its most original regulations are those referring to the transfer of ship ownership in order for a debt to be secured (Arts 190–194). Because of its several sources, the CPr.ML does not appear to have organic unity. 2.

The Code of Public Maritime Law

The CPub.ML (Law Decree 187/1973) entered into force on April 4, 1974. It is not an original legislative work, mainly because its drafters purported to codify various public maritime law statutes and to adjust their substantial regulations to the modern circumstances of Greek shipping and the relevant international conventions. However, many issues of public maritime law are either fragmentarily regulated (e.g., pollution of the marine environment) or not regulated at all (e.g., administrative control of marine accidents, fishing, sponge-fishing, consular, port and, in general, shipping charges and rights). Taking into account that public maritime law is subject to constant changes due to the endless development of marine technique, the CPub.ML drafters enacted fundamental and general regulations, leaving the state to further regulate through presidential decrees and ministerial decisions, as changing financial and technical circumstances are better addressed by such instruments. In this context, the drafters of the CPub.ML observed

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international conventions that had been ratified by Greece. The unification of its provisions towards the provisions of international conventions concerning ship safety or navigation and exclusion of substandard ships is particularly satisfactory. The CPub.ML also adopted the principles of social-financial liberalism. The intervention of the state is limited so that the balance in the relations between public authorities, ship owners and seamen is preserved. 3.

Deeds Approving Registration of Ships as Foreign Capital

The need to draw under the Greek flag ships that fly foreign flags and belong to Greeks led to the enactment of Law Decree 2687/1953 (Art. 13), that regards as foreign capital, to be productively invested, newly-built ships or ships under foreign flag of more than 1,500 gross register tons registered in Greece and belonging to Greeks (and also citizens of states-members of the EU or the European Economic Area (EEA)) or to foreign companies whose capital is controlled by Greeks (and also by citizens of states-members of the EU or the EEA) by more than 50 per cent. The ship’s import in Greece takes place after approval by the Minister of National Economy and Finance and the Minister of Mercantile Marine through a deed of approval. The deed is not only the formal condition for the registration of the ship as foreign capital in Greece, but also stands to the act of constitution determining the privileged status of the ship, i.e. the special regulations allowing for protection of the ship regarded as foreign capital, as well as the terms of its financial exploitation during its stay under Greek flag. These provisions of Law Decree 2687/1953 enjoy enhanced legal power and have been kept in force by virtue of Article 107 Const., which means that they cannot be amended by statute. 4.

General Provisions

The special regulation of maritime relations is not owed to the existence of any differences in quality between them and land relations. It is mainly owed to the special nature of their object, and the context within which they emerge. After all, the impact of the admirable progress of marine technique to previous special regulations has contributed to private maritime law coming closer to general private law, and to public maritime law coming closer to general administrative law. Indeed, private maritime law has not been regulating all maritime relations. Even those relations that were regulated, were not done extensively so. General private law complements the special provisions (Arts 5, 8, 44, 57, 66, 198, 204, 257 CPr.ML). B.

INTERNATIONAL SOURCES

The international sources of maritime law (considered in their wide sense) include multilateral and bilateral conventions signed by Greece and EU statutes (Regulations, Directives).

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Multilateral Conventions

These conventions are of either private or public law. In the first category especially the following international conventions are included: Convention for the unification of certain rules with respect to collisions between vessels (Brussels, September 23, 1910), enacted by Law ΓΩΠΣT (3886)/1911 (GG A 224); Convention for the unification of certain rules concerning assistance and salvage at sea (Brussels, September 23, 1910), enacted by Law ΓΩΠΣT (3886)/1911 (GG A 224); Convention for the unification of certain rules relating to the transport of goods by sea (Brussels, August 25, 1924; ‘The Hague Rules’), and its amending Protocol (February 23, 1968; ‘Visby Rules’), enacted by Law 2107/1992 (GG A 203); Convention for the unification of certain rules relating to the immunity of public ships (Brussels, April 10, 1926), as complemented by Protocol (Brussels, May 24, 1934), both enacted by Law 1600/1950 (GG A 298); Convention relating to the arrest of seagoing ships (Brussels, May 10, 1952), enacted by Law Decree 4570/1966 (GG A 224); Convention regarding the protection of rights concerning ships under construction (Brussels, May 27, 1967), enacted by Law Decree 375/1974 (GG A 122); Convention on civil liability for oil pollution damage (Brussels, November 29, 1969), as replaced by Protocol (London, November 27, 1992), enacted initially by Law 314/1976 (GG A 106) and after its amendment by Presidential Decree 197/1995 (GG A 106); Convention on the establishment of an international fund for compensation for oil pollution damage (Brussels, December 18, 1971), as amended by Protocol (London, 27 November 1992), initially enacted by Law 1638/1986 (GG A 108) and following its amendment by Presidential Decree 270/1995 (GG A 151); Convention on limitation of liability for maritime claims (LLMC; London, November 19, 1976), enacted by Law 1923/1991 (GG A 13); Convention concerning the carriage of passengers and their luggage by sea and Protocol thereof (both concluded in Athens on December 13, 1974), enacted by Law 1922/1991 (GG A 15); Salvage Convention (London, April 28, 1989), enacted by Law 2391/1996 (GG A 55). The second category, i.e. international conventions of public law, includes the following conventions in particular: Convention for the unification of certain rules concerning the courts having jurisdiction to settle private disputes arising from collision between ships (Brussels, May 10, 1952), ratified by Law Decree 4407/1964 (GG A 213); Convention on load lines (London, April 5, 1966), enacted by Necessity Law 391/1968 (GG A 125); Convention for the prevention of pollution from ships (MARPOL; London, November 2, 1973), as amended by the 1978 Protocol, enacted by Law 1269/1982 (GG A 89); Convention for the safety of life at sea (SOLAS; London, November 1, 1974), as amended by the 1978 Protocol, enacted by Laws 1045/1980 (GG A 95) and 1159/1981 (GG A 143); ILO Convention No. 147 concerning minimum standards in merchant ships (Geneva, October 29, 1976), enacted by Law 948/1979 (GG A 167); Convention on standards of training, certification and watch keeping for seafarers (London, August 7, 1978), which has been incorporated into Greek law through Council Directive 94/58 of November 22, 1994 on the minimum level of training of seafarers

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(OJ L 319/28–58, 1994) by Presidential Decree 210/1996 (GG A 165). It is worth mentioning that Greece has incorporated into its law the International Safety Management Code (Chapter IX SOLAS, May 24, 1994) through Presidential Decree 74/1996 (GG A 58). 2.

Bilateral Conventions

Bilateral Conventions support the development of mutual maritime and commercial relations in the freedom of navigation. Their scope of application is ships and cargos of one of the contracting states, when they lie in ports and generally in the territorial waters of the other contracting state, as ships flying the latter state’s flag. However, in case of coastal transport, towage, salvage actions, shipwrecks’ re-floating and fishing activity within Greek territorial waters, these conventions do not extend to the ships of the other contracting state the treatment awarded to Greek ships. This distinctive treatment of Greek ships, which is enacted by conventions between Greece and other EU Member States, and is relevant to issues subject to EU jurisdiction, continues to be binding upon the parties when the convention was concluded prior to the enactment of the relevant Community legislation, but has no effect thereon if concluded subsequently to the enactment of relevant EU legislation. However, the respective distinction effected in bilateral conventions between Greece and third countries is not generally incompatible with the provisions of the EC Treaty. III.

SHIPS AND FLOATING STRUCTURES AS OBJECTS

The CPr.ML applies to relations created by the function or exploitation of a ship, and, to a smaller extent, of a floating structure. A.

LEGISLATIVE MEANING OF THE SHIP

According to Article 1 CPr.ML, a ship (πλοίο, ploio) is any vessel of no less than ten net register tons intended to navigate at sea by its own means of propulsion. Ships of more than 24 meters of length engaged in international navigation are ganged, as regards their whole and net capacity according to certain mathematical types which do not regard ton as a measurement unit, pursuant to the Convention concerning ganging of ships (London, June 24, 1969), ratified by Law 1373/1983 (GG A 92). On the contrary, ships in internal navigation, whatever their size and type, are ganged, according to the provisions of Law Decree 973/1971 and of subsequent enactments, which regard ton as a measurement unit. However, the capacity, whole or net, which is based upon the mathematical types of the above international Convention, is numerically lower than that which is determined when ton is used as a measurement unit. For that reason, a ship that is measured according to the above Convention is measured according to the national legislation as

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well. That way, both its whole and net capacity in tons is calculated. This explains why measurement certificates issued according to the Convention also note, as a remark, the ship’s capacity in tons, as determined by national legislation. Floating structures (πλωτά ναυπηγήματα, plota naupigimata) intended to provide a certain service or execute a project, which do not possess one or more of the elements of the ship’s notion, e.g., they are less than ten net register tons, they do not move by their own means of propulsion, or they only navigate in lakes or rivers, they remain stable during the execution of a project or a service, are classified under the category of floating structures other than ships (i.e., boats, towed barges, lake boats, floating drills, floating refineries or lube oil stores, etc.). Some of the CPr.ML provisions apply to them by analogy (Art. 1 II). In the modern era, especially in view of the exploration and the exploitation of the continental shelf, floating structures gained great importance. The most important among those have been equated to ships, as regards their regulation. Thus, Law 457/1976 (Arts 1, 2) provides that the provisions of the first, second, eighth, ninth and tenth title of the CPr.ML, apart from the provisions referred in Article 1 II CPr.ML, the provisions of Law Decree 3899/1958 concerning preferential ship mortgage and those of the Code of Civil Procedure concerning arrest and seizure of ships are applied by analogy to floating structures of more than 500 net register tons or of more than 1,000 tons of displacement. Additionally, Article 12 of Law 2289/1995 concerning search and exploitation of hydrocarbons provides that permanent or temporary marine venues and floating structures, regardless of their capacity or displacement, built or reconstructed for the search or exploitation of hydrocarbons of native or foreign production, including drilling and storage thereof, are registered in the Central Port Authority of Piraeus. The provisions of the first, seventh, eighth, and tenth title of the CPr.ML, all other provisions concerning issues regulated by the above titles, and the provisions of the Code of Civil Procedure concerning ships, apply to them as well. The CPub.ML applies to ships and, to a smaller extent, to auxiliary floating structures. According to Article 3 thereof, ship is any vessel intended to navigate on water for the carriage of persons or goods, towing, salvage, fishing, pleasure, scientific research, or other purpose. This definition is closer to the scientific or technical definition of the ship. According to Article 4, auxiliary floating structure is every floating structure, regardless of its capacity, intended to be used at a stable position, usually at ports or bays, for auxiliary purposes of shipping, such as floating docks, floating cranes, floating piers, dredges, lightships, etc. B.

INDIVIDUAL DEFINITION OF THE SHIP

The fact that the ship is constantly in motion and is often subject to different laws and jurisdictions combined with the fact that it is of great value and is a source of major obligations compelled its individual definition. In order for the latter to become feasible, the organization of a system of publicity concerning its real relations needed to apply.

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Thus, the ship is registered in a special book, the shipping registry (νηολóγιο, niologio; Art. 2 I CPr.ML, Art. 6 I CPub.ML) and may fly the Greek flag (Art. 10 CPub.ML), it is given a name (Art. 6 III CPub.ML), which is not only referred in the deed of registration (CPr.ML Art. 2 II) but also on the external surface of the ship along with the port of registry (Art. 8 CPub.ML), and has a certain capacity and dimensions being evidenced by official measurement (Art. 21 et seq. CPub.ML). This definition of ship’s individuality has underplayed its role as a mobile object and put forward the fact that the ship possesses elements similar to real property, which grants individuality regardless of its possession by a certain person. This allowed the regulation of the ship’s real relations in a way similar to that of real property. However, the law has not equated the ship with real property; it remains a movable thing on which the provisions concerning real property can be applied, as long as relevant legislative provision exists to that effect. Thus, under Article 6 CPr.ML, transfer of the property in a ship requires an agreement between the transferor and the transferee that ownership is transferred to the latter on lawful grounds (e.g. sale, donation, donation from a parent to a child, contribution of a ship to a company, etc.). The agreement is in writing and is entered in the registry of ships. Transfer of ownership of ships under construction takes place in the same way, as long as the latter have been registered (Art. 7 CPr.ML). C.

SHIP’S NATIONALITY

The fact that the ship is constantly moving and crosses the high seas compelled its link to a certain jurisdiction, so that it is subjected to its law when it travels through marine areas that are not subject to public authority. That link is established when the conditions set by the relevant state are met; it is confirmed by the award of that state’s nationality to the ship. The conditions under which Greek nationality is awarded to a certain ship are substantial and formal (Arts 5, as replaced by Presidential Decree 11/2000, and 6 CPub.ML). The conditions of substance require that the ship must belong at least by 50 per cent to Greek citizens or Greek companies or citizens or companies of EU or EEA Member States (Art. 48 of the EC Treaty). However, in order for a ship belonging to a EU or EEA company to be recognized as a Greek one, the company must settle in Greece, within the meaning of Article 43 of the EC Treaty at the time of the ship’s entry in the Registry (Art. 5 I, II CPub.ML). It is also required that the ship’s operation is effected in Greece. That is the reason why the person who has the operation of the ship or the representative of the shipoperating company, who is specified in the deed of registration, must be settled in Greece. In addition, at the time of the ship’s registration a representative or a guarantor settled in Greece must be appointed. Formal conditions include submission by the interested person of an application, to which the document of transfer of ship ownership is attached (Art. 5 I

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CPub.ML). If this document is drafted abroad, in order to enter the Registry, it must be legalized by the local Greek consulate or be apostilled according to the Convention abolishing the requirement of legalization for foreign public documents (The Hague, October 5, 1961; ratified by Law 1497/1984, GG A 108; Art. 5 IV CPub.ML). The award of Greek nationality is executed from the time of the ship’s entry in the Registry kept at a Greek port or consular authority (Art. 6 CPub.ML) or from the issue of a temporary certificate of nationality (Art. 9 CPub.ML). Ships registered in the Greek Registry, and those that have been given a temporary nationality certificate, fly the Greek flag (Art. 10 CPub.ML). The flag, as an external element linking the ship to a certain jurisdiction, is of great importance. For instance, the real rights on a ship (ownership, pledge, and mortgage) are governed by the law of the state whose flag the ship flies (Art. 9 CPr.ML). According to the view prevailing under Greek law, maritime liens are rights of a real nature on a ship, and, consequently, their existence and content are governed by the law of the flag. Their ranking, however, depends on the seizure against the ship and therefore governed by the lex fori. The ship loses the Greek nationality in cases when the required connections cease to exist (Arts 16 I, 18 I, 5 CPub.ML), i.e. when the ship ceases to belong by at least 50 per cent to a Greek citizen or a citizen of a EU – or EEA – member state or to a Greek or EU or EEA company and this is entered in the Registry. The ship’s deletion is executed by the port authority that keeps the Registry following decision by the Minister of Mercantile Marine. IV.

SHIPS AND FLOATING STRUCTURES AS MEANS OF CREDIT

The great cost of modern ships and floating structures requires significant financing and the provision of security, especially through mortgaging. A.

SHIP MORTGAGE

There are two kinds of ship mortgage in Greece: simple and preferential mortgage. 1.

Simple Ship Mortgage (υποθήκη επί πλοίων, ypothiki epi ploion; Arts 195–204 CPr.ML)

Simple ship mortgage is a real right attaching to a ship or a floating structure belonging to another person established by a notarized, unilateral statement of the ship owner and recorded in the mortgage registry. The object of the mortgage is the ship, wholly or partially (Art. 1 I CPr.ML), as well as certain floating structures (Art. 1 of Law 457/1976) or floating buildings, regardless of their capacity

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and displacement, built or reconstructed for hydrocarbon searching, drilling, storage, and exploitation tasks (Art. 12 VI, VII of Law 2289/1995). A ship or certain floating structures under construction (Art. 1 of Law 457/1976) that have been registered may become an object of a simple ship mortgage as well (Art. 195 II CPr.ML). 2.

Preferential Ship Mortgage (προτιμώμενη υποθήκη επί πλοίων, protimomeni ypothiki epi ploion; Law Decree 3899/1958)

An imitation of the Anglo-Saxon institution of mortgage, preferential ship mortgage is a real right to a ship or floating structure belonging to a person, which is established by a notarized contract between the ship-owner and its creditor, and is recorded in the mortgage registry. If it is drawn in a foreign country, it may observe the form required by its law (Art. 2 of Law Decree 3899/1958). It provides the creditor, in case his claim for payment when due remains unpaid, with the right of either selling the ship at public auction and be preferentially satisfied by the proceeds of the sale, or taking over the operation of the ship for his own benefit in order to satisfy his claim from the ship’s exploitation, or exercising other rights provided by the mortgage contract, such as to freely sell the ship. Preferential mortgage can be created only over an entire ship, as defined in the CPr. ML (Art. 1 I), of more than 500 gross register tons (Art. 23 of Law Decree 3899/1958), as well as over certain floating structures (Art. 1 in f. of Law Decree 457/1976), or over floating buildings, regardless of their capacity and displacement, built or reconstructed for hydrocarbon searching, drilling, storage and exploitation tasks (Art. 12 VI, VII of Law 2289/1995). A ship or certain floating structures under construction (Art. 1 of Law 457/1976) can become an object of a preferential ship mortgage as well, as long as it has been registered (Art. 4 of Law Decree 3899/1958). B.

MARITIME LIENS (ναυτικά προνόμια, nautika pronomia)

The ship and the floating structure become the objects of several obligations for the ship-owner during their exploitation. The legislator regarded only particular creditors as deserving enhanced protection and care; and secures them by providing maritime liens, i.e. rights of real nature to the ship, the floating structure (that becomes an object of mortgage), and the freight. In this way, the creditors in question can be satisfied in priority over simple or preferential ship mortgagees and other creditors whose claims enjoy ranking privileges according to the general provisions (power of preference), even if the ship has been transferred or the freight has been assigned to a third person (power of prosecution). The legislator has profoundly limited maritime liens, so as to enhance the legal status of the ship mortgage, simple or preferential, which is the main support of the Greek ship-owner.

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The Maritime Liens in Particular

The CPr.ML secures four groups of claims through maritime liens (Art. 205 I): First group: (a) legal costs incurred in the common interest of the creditors. As a rule, these include costs of seizure against the ship, which, however, are prededucted from the proceeds of the sale and are not recorded in the ranking table, in case the proceeds are not sufficient (Art. 975 CCiv.P); (b) dues and charges on the ship such as lighthouse charges, pilot rights, consulate shipping charges, dues of anchoring, berthing, docking, water supply, etc.; (c) taxes in connection with navigation, such as the tax under Law 27/1975 imposed on ship-owner’s income; (d) costs of supervision and preservation from the time the ship enters the last port, that is to say the port where the ship was arrested or seized. Second group: (a) claims arising out of contracts of employment between master and crew, including claims on basic wages, increments and allowances, claims on shipwreck, disease or labor accident (Art. 66 CPr.ML; Law 551/1915), and termination of the engagement contract (Arts 68, 69, 74, 75 II, 80 CPr. ML); (b) charges of the Seamen’s Pension Fund (SPF) upon the master and crew engagement (i.e. contributions of social insurance of the seamen and the ship-owner), of the Mercantile Marine Welfare Fund, of the Capital of Seamen’s Unemployment and Disease as well as of the Capital of Marine Education (Arts 1 III, 20 of Law Decree 87/1969; Art. 38(a) of Law 4502/1966), remaining dues and charges owed to the SPF (Art. 1 XX of Law Decree 87/1969), fines imposed by the Marine Labor Finding Office in favor of the Capital of Seamen’s Unemployment and Disease. Third group: expenses and remuneration on account of assistance at sea and salvage of the seized ship. Finally, fourth group: compensation owed to ships, passengers and cargo by reason of collision of ships. Additionally, deeds proving registration of ships as foreign capital usually provide that, in case of a ship sold at public auction and distribution of the proceeds of the sale, priority over preferential ship mortgage is given only to those maritime liens referred to in Article 2 of the Convention for the international unification of certain rules concerning maritime liens and mortgages (Brussels, April 10, 1926, ratified by Law Decree 375/1974, GG A 122), as long as those liens are the same as those referred to in Article 205 I CPr.ML. 2.

Exercise of Maritime Liens

Every creditor enjoying a maritime lien is entitled, when his claim for payment falls due unpaid, to seize the ship, even if that has been transferred to another person, in which case he must file an action before lapse of three months since recordation. This time limit is of one year if it regards a claim of the master and crew out of the engagement contract, or charges of the SPF (Art. 207 CPr.ML as modified by Art. 8 of Law 1711/1987).

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When the proceeds of the sale at public auction are insufficient to satisfy all announced creditors, the person effecting the sale shall rank the creditors who enjoy maritime liens first, followed by creditors secured by (simple or preferential) ship mortgage, and last creditors enjoying a general or special privilege according to the Code of Civil Procedure or other law provision (Art. 1012 IV CCiv.P). Creditors protected by maritime liens are ranked inter se, according to the lawful rank (Art. 205 I CPr.ML), that is to say that the creditors of the first group are ranked in priority over those of the second one, and so on. Legally privileged maritime creditors of the same group are ranked pro portione (Art. 206(a) CPr.ML). By way of exception, in relation to claims arising out of assistance at sea or salvage, subsequent creditors enjoy priority over previous ones (Art. 206(b) CPr.ML). Creditors secured by ship (simple or preferential) mortgages are ranked according to the rule of time priority (prior in tempore potior in iure). C.

SEIZURE OF SHIP

A ship or floating structure can be seized by the creditor in two ways, purporting either: (a) to secure payment of a claim, when such a claim is embodied in a final and irrevocable judgment or is enforceable under a writ of execution (arrest; see below, under 1); or (b) to sell the ship at public auction and to satisfy the claim through the proceeds of the sale (seizure; see below, under 2). 1.

Arrest of Ship (συντηρητική κατάσχεση πλοίου, syntiritiki kataschesi ploiou)

Arrest of ships and certain floating structures is regulated by Articles 710, 713, 715, 720 CCiv.P, as well as by the Convention for the unification of certain rules concerning arrest on seagoing ships (see above, Section II B 1). Application of the above Convention presupposes the existence of an international legal relation. However, it is not required that the ship which is to be arrested within the territory of a contracting state flies the flag of another contracting state. It is possible for a ship flying the Greek flag to be arrested in Greece according to the Convention, as long as the relevant claim is not purely domestic but of an international character, a condition met, for instance, when the creditor has his residence or main business establishment within another contracting state. If the creditor is located within a non-contracting state, arrest of the Greek ship shall again take place according to the Convention, since Greece has not used the option under Article 8 III thereof and has not excluded, either wholly or partly, any non-contracting state from the advantages granted by the Convention. However, according to the prevailing opinion, the Convention does not apply to ships flying the flag of a non-contracting state. Greek law is, however, different from the above Convention, the main difference being that the Convention allows for the arrest of a ship (in the scientific and

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technical meaning of the term) only to secure a maritime claim, i.e. a claim created by an incident of those referred to in the Convention (Art. 1 I). If the Convention applies but the claim is not a maritime one, the creditor cannot arrest the ship. He is entitled, however, to arrest any other asset of the ship-owner according to the provisions of the Code of Civil Procedure. 2.

Seizure Against Ship (αναγκαστική εκτέλεση επί πλοίου, anangastiki ektelesi epi ploiou)

The creditor who possesses a writ of execution can seize the ship or floating structure of his debtor and cause their sale at public auction in order to satisfy his claim through the proceeds of the sale according to the relevant provisions of the Code of Civil Procedure. V.

SHIP-OWNER AND OPERATOR

In the Greek shipping world, the ship’s owner usually exploits the ship himself, that is to say he functions as ship-owner. It is likely, however, that he will not manage the ship himself, assigning such duties to another person, the ‘operator’, which may better serve his interests and allow for optimal use of the financial potentials. A.

THE SHIP-OWNER (πλοιοκτήτης, ploioktitis)

When the owner exploits the ship himself he is named ship-owner. For small ships effecting coastal fishing, the ship-owner is usually an individual. The division of risks compelled the acquisition and exploitation of ships by more than one person, thus creating co-ship-owners. This was particularly so in the past. Nowadays, such exploitation (Arts 10–36 CPr.ML) has to a great extent diminished in importance due to the widespread use of commercial company forms which limit the liability of shareholders. Ships under Greek flag mainly belong to corporations, close corporations and maritime corporations. Corporations and close corporations are subject to the common provisions concerning these types of companies (codified Law 2190/1920 for corporations and Law 3190/1955 for close corporations). Maritime corporation is a special form regulated by Law 959/1979, its exclusive purposes being ownership of Greek commercial ships, exploitation and management of Greek or foreign flag ships, as well as participation in the capital of other maritime corporations (holding companies). The enactment of this special company form provides Greek marine entrepreneurs with the same tools given to them by foreign companies of convenience. Most companies that own Greek ships are foreign (e.g., Liberian, Panamanian) and each of them owns only one ship. The ship-owner is bound by the juridical acts of the master in the performance of his duties. He is also liable for unlawful acts committed by the master, the crew or the pilot during such performance (Art. 84 CPr.ML).

306 B.

Anthony M. Antapassis THE OPERATOR (εφοπλιστής, efoplistis)

Any involvement in the ship’s exploitation by a person other than the owner does not invest the former with the legal status of operator. An operator is a person, either natural or legal, who manages, i.e. governs on his own behalf and for his own account a ship belonging to another, during its navigation, and uses it as a means of a maritime enterprise (Art. 105 I CPr.ML). For instance, the bare boat charterer is an operator, although the simple time or voyage charterer is not. The operator, together with the owner of the ship, has to declare to the port authority at the place of registry that the operator manages the ship on his own behalf (Art. 105 I, II CPr.ML). Failing such declaration, the ship-owner is presumed to manage the ship for his account. The ship-owner may rebut that presumption. The operator is personally liable for obligations arising out of the ship. The ship-owner is liable by law for the obligations arising out of the ship’s exploitation. Article 106 CPr.ML provides that claims against the operator of the ship arising from the management of the ship can also be pursued against the ship. The ship operator is bound by the juridical acts of the master done during the performance of the duties delegated to him and is liable in respect of unlawful acts committed by the master, the crew or the pilot during the performance of the duties entrusted to them (Arts 105 III, 106 I, II(b) CPr.ML). C.

LIMITATION OF LIABILITY

The system limiting liability under the CPr.ML (Arts 85 et seq.) allowed the shipowner or operator to either surrender the ship and its gross freight to the creditors or offer them a sum equivalent to a part of its value as at the commencement of the voyage and to the gross freight, and thus not only encouraged the maintenance of older ships under the Greek flag but was also contrary to public sentiment and justice in general. The above situation prompted Greece to ratify the Convention for the limitation of liability for maritime claims (LLMC; see above, Section II B 1). Application of the LLMC does not depend on whether the particular ship flies the flag of a contracting state. According to Article 15 I LLMC, its provisions apply when a person entitled to limitation of liability pursues such limitation before a court of a contracting state or does so in order to release a ship or other property from arrest or to discharge any security given in the jurisdiction of a contracting state. It is irrelevant whether the person entitled to limit his liability has no residence or main business establishment in Greece, or whether the ship related to the limitation of liability flies the flag of a third, non-contracting, state. Greece has not used the option provided under Article 15 II concerning the non-application of the Convention in the above cases. Persons entitled to limit their liability for maritime claims according to Article 1 LLMC are the proprietor, the operator, the charterer or ship’s manager, the assistant or salvor and in general every person (master, members of the crew, and other

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servants) for whose actions any of the aforementioned persons is liable. The LLMC system is internationally known and there is no need for further examination here. Applicability of the LLMC caused the relevant CPr.ML provisions (Arts 85 et seq.) to fall into disuse. However, since aircushion vehicles and floating platforms constructed for the purpose of exploring or exploiting the natural resources of the seabed or the subsoil thereof are not subject to the LLMC limitation regime (Art. 15(5)), it seems that such structures may fall within the scope of application of the above provisions of the CPr.ML. VI.

SHIP PERSONNEL

The personnel of the ship consist of the master and the crew. A.

THE MASTER (πλοίαρχος, ploiarchos)

The master is bound by a contract of engagement with the ship-owner or his specially-authorized representative. The contract is entered in the crew list (ναυτολόγιο, nautologio; Art. 37 CPr.ML). The ship-owner may terminate the contract at any time without notice. An agreement to the contrary is void (Art. 38 I CPr.ML). Where the ship-owner terminates the contract, he is not compelled to pay compensation, unless otherwise agreed in writing. The master is liable for any personal fault (Art. 40 CPr.ML). During the performance of the duties delegated to him, the master acts as the ship-owner’s or the operator’s representative (Arts 84, 106 CPr.ML). The master concludes and terminates the contracts of engagement of crewmembers (Art. 39 CPr.ML; Art. 105 CPub.ML). He may also serve documents, if such official need arises during voyage, and file for an injunction or an action for all matters concerning the ship or the cargo. Under the same conditions, the master may also file for an injunction in the name of the shippers of the cargo (Art. 47 CPr.ML) or the ship-owner’s or the operator’s name. If the ship is at a place other than that of the ship-owner’s domicile, judicial or extra-judicial documents may also be served on the master (Art. 48 CPr.ML). Additionally, the master exercises public authority: he exercises general administration upon the ship and exerts authority on the passengers taking any necessary measure, within the framework of the regulations in force, in order to maintain order, discipline and hygiene, as well as the safety of the ship, the passengers and the cargo (Art. 104 CPub.ML). The master is responsible for the ship’s seaworthiness (Art. 106 CPub.ML), that the food and water supply are taken care of (Art. 107 CPub.ML), that no drug substances (Art. 108 CPub.ML), weapons, inflammable and generally dangerous materials (Art. 109 CPub.ML) are on board, that passengers suffering from infectious diseases and dangerous psychopaths do not board the ship (Art. 110 CPub.ML), and that passengers disembark when they must (Art. 111 CPub.ML). He is required to collect Greek seamen for repatriation

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(Art. 112 CPub.ML); to personally navigate the ship during its entering and leaving ports and bays and during navigation in canals and passes as well as navigating in difficult marine areas (Art. 113 CPub.ML). In case of birth or death on board the master records the incident in the log book and issues a birth or death certificate (Arts 115, 117 CPub.ML). During the voyage of a Greek ship, any passenger can make out a will by an oral statement before the master, who drafts a document before two witnesses, who also co-sign (Art. 116 CPub.ML, Arts 1749, 1751, 1752 CC; see Ch. 10, Section IV D 1). The master has the power to conduct a summary investigation regarding crimes committed on board during voyage and until the ship reaches a port where a port or consular authority is available, and also such crimes committed on board in a foreign state, so long as there is no consular authority and they fall under Greek penal jurisdiction (Art. 241 CPub.ML; see Ch. 20, Section II A 3). Moreover, the master exerts disciplinary authority on crewmembers (Arts 245, 257, 262 CPub.ML). B.

THE CREW (πλήρωμα, pliroma)

Crew lato sensu includes all persons who, regardless of duties, are employed under contract for constant services with payment of wage on board a specific ship or floating structure so that the ship is used as intended. Thus, crew includes not only those who provide maritime labor such as the second mate, the boatswain, the guarding officer, the steersman, sailors, engineers (crew stricto sensu), but also those performing general or supplementary services on the ship for the successful fulfillment of its purpose such as physicians, nurses, musicians, artists, chefs, valets, carpenters, etc. Pilots, stevedores, trimmers, and persons staying on board the ship during its stay at port so as to carry out repairs or other tasks are not considered crewmembers. The contract of engagement of a seaman as a crewmember of a specific ship is entered into with the master or other representative of the ship-owner and is recorded by the port or consular authority in the crew list (Art. 53 CPr.ML). Upon entering into the contract of engagement, a seaman is entitled to payment of part of his wage in advance in an amount determined according to the particular circumstances, but in no case exceeding the wage covering one month. The balance of the wage shall be paid at the end of each voyage (Art. 64 CPr.ML). A seaman falling sick is entitled to wages and receives medical treatment at the expense of the ship. If the contract of engagement is terminated by reason of his illness and he receives medical treatment off the ship, he is entitled to medical treatment and wages while his illness lasts, but only up to a period of four months. The above provisions also apply to labor accidents. If the seaman is thereby rendered unfit for work or dies as a result thereof, the special provisions of the law relating to compensation for labor accidents apply (Art. 66 CPr.ML; codified Law 551/1915). The contract of engagement is terminated in case of unseaworthiness or loss of the ship in general, loss of the Greek flag and sale of the ship at public auction

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(Art. 68 CPr.ML). When the contract of engagement is terminated due to the wreckage or loss of the ship, seamen are entitled either to wages for up to two months, as long as they have not hired out their services to anyone else, or compensation equal to wages of 15, 30, or 45 days, depending on the ship’s location when the contract was terminated (Arts 62, 75 II, 76 CPr.ML). If the contract is terminated due to loss of the Greek flag, sale at public auction, or unseaworthiness, seamen are entitled to compensation calculated in the same way. A contract of engagement may be terminated at any time by the master. In such case, the seaman is entitled to compensation calculated in the aforementioned way unless termination was justified due to his own misconduct (Arts 72, 74, 75 III CPr.ML). The seaman may terminate the contract and claim compensation calculated in the same way in case the master commits a serious breach of his duties towards him (Art. 74 I, CPr.ML). Finally, where a contract of engagement is terminated, the seaman is entitled to repatriation (Art. 78(a) CPr.ML). The seaman exercises his right to repatriation without delay by declaration to the master (Art. 79(a) CPr.ML). Thereupon, the master delivers to the seaman a ticket for transport to Greece of the master’s choice, albeit selected reasonably, and provides the seaman with a sum sufficient to ensure his maintenance until he reaches home. Instead of repatriation, the seaman may request a ticket to another place, provided this does not entail greater expense (Art. 79(b),(c) CPr.ML). If the seaman is a foreigner, he is entitled to return to the state of his nationality or the port where the voyage commenced or the place where the contract of marine engagement was signed (Art. 83 CPr.ML). VII.

CONTRACTS CONCERNING SHIP EXPLOITATION

There are several contracts related to the ship’s use. The contracts of affreightment and of carriage of passengers and goods, which are of greater economic importance, are briefly examined below. A.

CONTRACT OF AFFREIGHTMENT (σύμβαση ναύλωσης, symvasi naulosis)

Article 107 CPr.ML underlines the logical concept that every carriage of goods by sea entails an agreement concerning the ship’s use. Thus the contract of affreightment lato sensu can materialize in two ways, namely through: (a) the use of all (whole charter) or part (part charter) of the ship’s cargo-carrying spaces for the execution of a sea transport from one port to another (affreightment contract stricto sensu), or (b) the reception, transport and delivery of goods to their destination (contract of carriage of goods). The distinction between a contract of affreightment stricto sensu and the carriage of goods is also made apparent by certain external elements such as the document used in each contract (charter party and bill of lading respectively).

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The CPr.ML provisions have been formulated so as to apply first and foremost to the contract of affreightment stricto sensu, allowing the parties to agree differently. However, the provisions of Articles 134–148 CPr.ML concerning the carrier’s obligations and liability do not allow any agreement to the contrary between the parties. This is an international originality. Thus, as regards contracts of affreightment governed by Greek law, any clause included in the charter party which either excuses the carrier from his obligations and liabilities, as set out in the abovementioned articles, or limits them in any way is void. These provisions are in harmony with the provisions of the Hague Rules as in force prior to the 1968 and 1979 Protocols (see above, Section II B 1). The object of the contract of affreightment stricto sensu is the assignment of the ship in whole or in part, properly equipped, supplied and manned to navigate and preserve the cargo (Art. 111 CPr.ML). According to the prevailing view, the bare boat charter, i.e. the charter of a ship without master and crew, is a contract for lease that is not subject to the CPr.ML provisions concerning the contract of affreightment but to those of the Civil Code concerning the contract for lease (Arts 574 et seq. CC; see Ch. 6, Section II C) or the contract of lease of income-producing objects (Art. 638 CC; on usufructuary lease, see Ch. 6, Section II D). The carrier is required to put at the charterer’s disposal a specific ship for the carriage of goods along with the master’s and crew’s services for a specific period of time (time charter) or to put at the charterer’s disposal the whole or part of a certain ship for the carriage of goods for one or more journeys (voyage charter). Both these contracts of affreightment stricto sensu are governed by Articles 107 et seq. CPr.ML and the parties’ agreements included in the charter party, as long as such agreements are allowed under these provisions. For example, the parties are entitled to freely determine the matter of lay time and demurrage and the demurrage’s fee. B.

CONTRACT OF CARRIAGE OF GOODS BY SEA (σύμβαση θαλάσσιας μεταφοράς πραγμάτων, symvasi thalassias metaforas pragmaton)

The contract of carriage of goods by sea covered by a bill of lading or other similar document between ports lying in different states or between ports lying within the Greek territory is governed by the Hague and Visby Rules (see above, Section II B 1). Article 2 of Law 2107/1992 extended their application to carriage of goods between Greek ports. This set of rules are internationally known and there is no need for special examination here, particularly since their interpretation by the courts does not differ from that of other maritime jurisdictions, including Common Law ones. However, the Rules do not apply to such issues as the issuing of bill of lading, its type, its legal content and its consequences which are governed by Articles 168–173 CPr.ML. According to the CPr.ML provisions, the issuing of a bill of lading to the bearer is not allowed (Art. 169). As regards the relations between carrier and charterer, the agreements proven by the charter party prevail

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(Art. 170 II). No objections arising out of the agreement between the carrier and the shipper can be raised against the lawful bearer of a bill of lading, unless the bearer acquired the bill of lading by acting willingly against the carrier’s interests (Art. 170 III). As regards the establishment of real rights upon loaded goods, the passing of the bill of lading to the assignee or the lawful bearer produces the same consequences as if the goods were delivered (Art. 172). C.

CONTRACT OF CARRIAGE OF PASSENGERS BY SEA

The contract of carriage of passengers or passengers and their luggage is subject either to the CPr.ML (Arts 174–189) and the general provisions of the Civil Code, in cases of carriage within Greece, or to the Convention on the carriage of passengers and their luggage by sea and its Protocol (see above, Section II B 1). The main differences between the two sets of rules are that, contrary to the Convention, the CPr.ML and the Civil Code provisions provide the passenger with the choice to base his claim upon tort liability instead of the contract of carriage, and thus to claim compensation for damage, including pain and suffering. In case of the passenger’s death, his family members may claim compensation for grief and suffering. Furthermore, no limit is provided with regard to the carrier’s liability for passenger death or injury. The fact that the limit to the carrier’s liability has been recently increased will accommodate the adjustment of domestic legislation to the international provisions. VIII.

MARINE INCIDENTS

Provisions concerning common or general average, ship collision, salvage and ship or cargo wreck, being the most usual incidents of navigation, are briefly addressed below. A.

COMMON OR GENERAL AVERAGE (κοινή αβαρία, koini avaria)

Common or general average is regulated by Articles 219–234 CPr.ML. These provisions were mainly drafted according to the 1950 York-Antwerp Rules which have been incorporated in the national law of many countries and stand as the unified law of general average. Therefore they are internationally known and need no further examination. After all, relevant Greek court decisions are rare. However, it should be pointed out that the master is required to draft as soon as possible a report about his decisions and deeds concerning the extraordinary sacrifices and expenses regarding the salvage of ship and cargo. The report in question is signed by the high-ranking officers or crewmembers, makes reference to the disagreements that were brought out, and is copied in the bridge deck diary. A copy of this

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report is attached to the report of extraordinary incidents, which the master drafts before the competent one-member court of first instance (Arts 50, 232 CPr.ML). Accordingly, an average adjustment takes place, at the last port of discharge or at the port where the voyage is interrupted, at the instance of the master or the most diligent of the interested parties, by expert adjusters appointed by the court, or, if adjustment takes place overseas, by the consular authority or, failing the latter, the local authority (Art. 233 CPr.ML, Art. 794 CCiv.P). Finally, the carrier may refuse to deliver goods, or require that they be placed on deposit until payment of the contribution for which they are liable, unless the person having rights in the goods furnishes security (Art. 234 CPr.ML). However, the consignee of the goods can claim compensation for their damage or loss, in case general average is attributed to a carrier’s fault. B.

COLLISION BETWEEN SHIPS (σύγκρουση πλοίων, syngrousi ploion)

Collision between ships is regulated by Articles 235–245 CPr.ML. These provisions are based on the provisions of the Convention for the unification of certain rules of law with respect to collisions between vessels (see above, Section II B 1). Since the rules are internationally known, there is no need for particular examination here. However, certain points need to be underlined. In case of collision between ships, Greek courts shall have jurisdiction: (a) if the defendant is domiciled or resides in Greece; (b) if the ship has the Greek nationality; (c) if the collision took place within Greek territorial waters; or d) if Greece is the place of arrest of the ship, even if arrest has been lifted before the action was brought (Art. 242 CPr.ML; see also the Convention for the unification of certain rules concerning the courts having jurisdiction to settle private disputes arising from collision between ships, above, Section II B 1). When the CPr.ML provisions apply, the statute of limitation is one year from the end of the year during which the claim was born (Arts 289(6), 291 CPr.ML). An administrative commission or board of inquiry, i.e. the Inquiring Board of Marine Accidents, inquires into the causes, circumstances, persons liable for collision and their degree of liability, and drafts a report. The report of the Board has only persuasive authority. Thus, the court may form its opinion and pass judgment based on any other evidence (Art. 243 CPr.ML; Arts 5 VIII, 7 of Law Decree 712/1970). C.

ASSISTANCE AT SEA AND SALVAGE (επιθαλάσσια αρωγή και διάσωση, epithalassia arogi kai diasosi)

Articles 247–256 CPr.ML govern assistance at sea and salvage. These rules are mainly based on the provisions of the Convention for the unification of certain rules of law concerning assistance and salvage at sea (see above, Section II B 1). Additionally, Greece has ratified the new Salvage Convention (see above,

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Section II B 1). This second Convention applies when legal protection (before the ordinary courts or arbitral tribunals) in an issue falling under the scope of application (Art. 2) is pursued in a contracting state, such as Greece. The fact that the application of the Convention does not depend on the ship’s nationality has limited to a great extent the application of the aforementioned CPr. ML provisions, and particularly those referring to the parties’ obligations, the conditions of salvor’s fee as well as the criteria for its determination, the parties responsible to pay that fee, the special compensation of the salvor on environmental damages prevention or limitation, and the securing of payment of the fee and payment of the special compensation. Of practical importance remain those CPr. ML provisions that regulate matters not directly addressed by the Convention, such as the apportionment of the fee if salvage was affected by a ship (Art. 251 CPML). D.

SHIPWRECKS (ναυάγια, nauagia)

In some instances the law refers to ‘shipwreck’ in the meaning of a marine accident (Art. 62 CPr.ML), while in other instances the law regards it as the outcome of the accident. Under the latter meaning, the ship is wrecked when, due to a violent incident, it is subject to such changes that its shape characteristics are extinguished (e.g., safe-breaking, shattering). It is likely, however, that the ship becomes wrecked without being destroyed but solely sunk. In such cases due to a marine incident, fire, or other similar occurence, the ship definitely loses the ability to fulfill its purpose as a financial unit, either because its situation makes its reuse obviously impossible (absolute shipwreck) or because restoration of its losses or damages imposes expenses much greater than the ship’s value after restoration, a fact that makes restoration utterly unprofitable (relative shipwreck). Other considerations may apply on the issue whether restoration of the ship is utterly unprofitable or not and, subsequently, whether this constitutes an absolute or relative shipwreck. When the ship-owner abandons the ship to the insurers (Art. 281 et seq. CPr.ML), because he considers that it constitutes an absolute or relative shipwreck, insurers often engage expert surveyors to report whether restoration is utterly unprofitable. It is apparent that in such a case creditors and other interested parties cannot have an accurate perception of their respective rights. However, it should not be regarded that the ship becomes a wreck only in cases where refloating is obviously impossible and therefore constitutes an absolute shipwreck; this would be a very restrictive interpretation of the legal concept of shipwreck and would prevent the application of maritime legislation on the matter. Such an interpretation would also fail to take into consideration the admirable progress in maritime technology that dramatically reduces the cases of – literary – absolute shipwrecks. However, whether a ship has become a wreck is a material issue to be decided by the court on the merits, based on the particular circumstances of each case. The Greek legislator, in order to qualify a ship as a wreck, did not follow the example of other legislators who demand that the owner lose physical possession, or control, either on the grounds that the captain and crew have abandoned the

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vessel and the owner himself is not present, or on the grounds that the owner abandoned her by not taking measures of supervision (i.e., appointing a guard). This is important only in connection to the application of particular provisions of law regarding shipwrecks. The decisive legal issues regarding shipwrecks arc the following: (a) whether provisions of maritime law will continue to apply, and to what extent, to a shipwreck; and (b) whether the law of the flag will govern the rights and obligations on a shipwreck in the high seas and the respective state will have jurisdiction over such matters. In connection to the above, it should be noted that ownership and other property rights continue to exist over the wreck, provided that there is no doubt regarding the identity of the respective wreck and its actual identification. Moreover, particular provisions of law which are of a mandatory nature regulate wrecks of ships which cause a danger to navigation, or prohibit the arrival to, or departure from a port, or the stay in it, or pollute the marine environment, or have an archaeological or cultural interest. In relation to the above, Law 2881/2001 obliges the owner of the wreck that constitutes a danger of navigation in a port, canal, or shipping channel, or prohibits the mooring, anchoring, or use of port platforms, or port breakwaters, or constitutes a danger of pollution of the marine environment to refloat the wreck, or in any way eliminate its consequences (Art. 2 I). If the owner fails to do so, port authorities are entitled to sell the wreck to a third party, who undertakes the obligation to refloat it, or eliminate its consequences (Art. 2 IV, V). The owner of a ship that arrives in a Greek port is obliged to have it insured for her refloating etc., if she comes into a state of wreck; under such policy, the insurer is, by operation of law, directly liable to port authorities as well (Art. 7). The wreck of a ship in the high seas enjoys the legal protection that the Greek State is entitled to grant to a ship bearing its flag according to international law. IX.

MARINE INSURANCE (θαλάσσια ασφάλιση, thalassia asfalisi)

Marine insurance is governed by Articles 257–288 CPr.ML, complemented by the provisions of Law 2496/1997. The CPr.ML provisions did not take into account the long-followed practice formed within the marine insurance market. This disadvantage is overcome by the possible entry of contrary clauses in insurance contracts since the marine insurance provisions are ius dispositivum. The CPr.ML provisions are mainly based upon two principles. The first one establishes universality of risks. The underwriter is liable for any damage of the subject matter insured, owed, or caused by the perils of navigation at sea (Arts 257, 259 CPr.ML). By virtue of the second principle, marine insurance is based upon the notion of the insured interest, i.e. every legal interest exposed to sea perils, including the profit expected to be made, may become the subject matter of marine insurance (Art. 259 CPr.ML). The universality of this rule maximizes the effect of insurability within the field of marine insurance.

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However, certain provisions of the CPr.ML were met with reservation and are not followed by insurance practice. One provision indicatively pointed out is that of Article 260 providing that, with the exception of fraud, when more contracts of insurance are concluded at the same time up to the value of interest, each of the several underwriters is liable for the entire insurance proceeds. This is a moot point, because the rule followed in practice is that, in case of multiple insurance contracts for the same interest, the underwriters are pro rata liable; i.e. each of them is liable up to the value of the insurance interest he has insured. In addition, it should be pointed out that the provision of Article 272, stipulating that a contract of insurance against common sea perils is terminated in case the ship is exposed to war risks, brings the insured in difficulty. The rule followed in practice is that the ship’s exposure to war risks does not affect the underwriter’s liability for sea perils. The underwriter is still liable for sea perils until expiration of the insurance contract. The abandonment of ship, cargo and freight to the insurers is dealt with in Articles 280–288 CPr.ML. Abandonment is allowed only in those cases exclusively referred in the law (Art. 281 CPr.ML). Abandonment takes place through written notice to the underwriter. The ownership right upon the ship, or the cargo and/or freight is transferred to the underwriter from the moment the notice is served to him, as long as the latter does not declaim the acquisition of ownership without intended delay and pays the whole insurance compensation without reservation (Art. 287 CPr.ML). It is concluded from this provision that the transfer of the ship’s ownership does not entail entry of the ship’s abandonment statement in the registry. BASIC BIBLIOGRAPHY (in Greek unless otherwise indicated): A. Antapassis, Claims Secured by Maritime Liens (Athens, 1976). A. Antapassis, Maritime Assistance and Salvage, vol. I: Sources and Concepts (Athens, 1992). A. Antapassis, ‘Ship’s Operation by Third Persons and Protection of Maritime Creditors’ in Minutes and Reports of the 1st International Conference of Maritime Law, Piraeus 28-30 May 1992 (Piraeus, 1994). A. Antapassis, The Convention of 1952 Concerning Arrest of Ships (AthensKomotini, 1998). N. Deloukas, Maritime Law (2nd edn, Athens, 1979). K.D. Kerameus, ‘Admiralty Jurisdiction in Continental Countries’, The Maritime Lawyer, vol. VIII (1983) 329–343 [in English]. A. Kiantou-Pambouki, Maritime Law, vols I, II (5th edn, Athens-Thessaloniki, 2005). C. Rokas, Maritime Law (Athens, 1968). I. Rokas, Introduction to Greek Private Maritime Law (Athens-Komotini, 2001) [in English].

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I. Schinas, Sources of the High Sea Goods Transport Law (Athens 1977). Readers may also consult the English translation of the Code of Private Maritime Law, including brief comments, by. T. Karatzas and N. Ready (The Hague, Boston, London, 1992), or the French translation of both the above Code and the Code of Public Maritime Law, including a large introduction, by A. Antapassis (Les Codes Maritimes Grecs, Paris, 1983).

Chapter 14

Labor Law Ioannis D. Koukiadis*

I.

INTRODUCTION

Industrial growth, connected with traditional labor laws, had a delayed start in Greece resulting in laws that only started taking shape at the beginning of the 20th century. Accelerating after the Second World War, this legislation has been aligned with that of other European nations, mainly French and German. Recently it began transforming with a sequence of new statutes under the principle of flexibility. Aside from labor legislation, with its various forms – laws, decrees, ministerial decisions – important influence has been exercised by the Constitution and, from 1975 onwards, by collective work agreements. However, the basic sources are the regulations of governmental origin. Being relatively new, the Constitution belongs to a category that supplements traditional protections of individual freedoms with a string of social rights. Additionally, under the diffuse control system of constitutionality control, Greek courts may review the compatibility of labor laws with the Constitution (see above, Chapter 3 VI C).

* Professor of Law, University of Thessaloniki. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 317–330. © 2008, Kluwer Law International BV, The Netherlands.

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The following are the most important labor law provisions of the Constitution: (a) Article 22: (i) Work constitutes a right and shall enjoy the protection of the State, which shall care for the creation of conditions of employment for all citizens and shall pursue the moral and material advancement of the rural and urban working population. All workers, irrespective of sex or other distinctions, shall be entitled to equal pay for work of equal value. (ii) General working conditions shall be determined by law, supplemented by collective labor agreements concluded through free negotiations and, in case of the failure of such, by rules determined by arbitration. (iii) The matters relating to the conclusion of collective labor agreements by civil servants and the servants of local government agencies or of other public law legal persons, shall be specified by law. (iv) Any form of compulsory work is prohibited. Special laws shall determine the requisition of personal services in case of war or mobilization or to face defense needs of the country or urgent social emergencies resulting from disasters or liable to endanger public health, as well as the contribution of personal work to local government agencies to satisfy local needs. (v) The State shall care for the social security of the working people, as specified by law. Interpretative clause: the general working conditions include the definition of the manner of collection, and the agent obliged to collect, and return to trade unions membership fees specified in their respective by-laws. (b) Article 23: (i) The State shall adopt due measures safeguarding the freedom to unionize and the unhindered exercise of related rights against any infringement thereon within the limits of the law. (ii) Strike constitutes a right to be exercised by lawfully established trade unions in order to protect and promote the financial and the general labor interests of working people. Strikes of any nature whatsoever are prohibited in the case of judicial functionaries and those serving in the security corps. The right to strike shall be subject to the specific limitations of the law regulating this right in the case of public servants and employees of local government agencies and of public legal persons as well as in the case of employees of all types of enterprises of a public nature or of public benefit, the operation of which is of vital importance in serving the basic needs of the society as a whole. These limitations may not be carried to the point of abolishing the right to strike or hindering the lawful exercise thereof.

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(c) Article 25: (i) The rights of the human being as an individual and as a member of society and the principle of the welfare state rule of law are guaranteed by the State. All agents of the State shall be obliged to ensure the unhindered and effective exercise thereof. These rights also apply to the relations between individuals to which they are appropriate. Restrictions of any kind which, according to the Constitution, may be imposed upon these rights, should be provided either directly by the Constitution or by statute, should a reservation exist in the latter’s favor, and should be complied with the principle of proportionality. (ii) The recognition and protection of the fundamental and inalienable rights of man by the State aims at the achievement of social progress in freedom and justice. (iii) The abusive exercise of rights is not permitted. (iv) The State has the right to claim of all citizens to fulfill the duty of social and national solidarity. (d) Article 106: (i) In order to consolidate social peace and protect the general interest, the State shall plan and coordinate economic activity in the Country, aiming at safeguarding the economic development of all sectors of the national economy. The State shall take all measures necessary to develop sources of national wealth in the atmosphere, in underground and underwater deposits, and to promote regional development and to further especially the economy of mountainous, insular and frontier areas. (ii) Private economic initiative shall not be permitted to develop at the expense of freedom and human dignity, or to the detriment of the national economy. (iii) With the reservation of the protection provided in Article 107 in connection with the re-export of foreign capital, the law may regulate the acquisition by purchase of enterprises or the compulsory participation therein of the State or other public agencies, in the event these enterprises are of the nature of a monopoly or are of vital importance to the development of sources of national wealth or are primarily intended to offer services to the community as a whole. (iv) The cost of purchase or the counterpart to the compulsory participation of the State or other public agencies must indispensably be determined by a court and must be in full, so as to correspond to the value of the purchased enterprise or the participation therein. (v) A shareholder, partner or owner of an enterprise, the control of which devolves upon the State or upon an agency controlled by the State as a result of compulsory participation in accordance with paragraph 3, shall be entitled to request the purchase of his share in the enterprise, as specified by law.

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Ioannis D. Koukiadis (vi) The law may specify matters pertaining to the contribution to the State expenditure by beneficiaries from the execution of public utility works or works of a more general significance for the economic development of the Country. Interpretative clause: the value specified in paragraph 4 does not include such value as is due to the monopolistic nature of the enterprise.

Furthermore, international labor agreements ratified by Greece prevail over internal laws under Article 28 I Const (see Ch. 3, Section I D). References thereto are quite usual and useful to both the employer and the employees. In addition, as a member of the EU, Greece also complies with Community rules, drawing greatly therefrom. As is the case with other countries of Continental Europe, the employment agreement acquires fundamental importance provided that it contains terms more favorable than those of the other sources. As labor laws are traditionally divided into individual and collective ones, their presentation will be made on that basis. II.

INDIVIDUAL LABOR RELATIONS

A.

INDIVIDUAL WORK RELATIONS

Labor or work (εργασία, ergasia), as distinguished from employment or productive activity generally, and the related agreement, is characterized by personal and legal dependence, sometimes even only economic dependence. Article 1 of Law 1876/1990 offers the possibility to workers who are not wage earners but work under dependent financial conditions to enter into collective workplace agreements. Furthermore, Article 1 of Law 2639/1998 also introduces the ‘evidence’ rule, according to which an employment agreement for services for a certain, determined or undetermined time, especially in cases of ‘unit’ work (garment), remote work or residential employment, is deemed not to conceal an agreement of dependent employment provided it is in writing and is made available within 15 days for workplace inspection. An invalid work agreement is considered as de facto preserving the rights of the worker. However, specifically for wages, worker’s claims are limited only to unjust enrichment. Labor law applies only to workers who are ready to offer their services at the place of work as requested by the employer, while the readiness of the worker on call is not considered to come under labor law. B.

CLASSES OF EMPLOYEES

While labor legislation has a general application, different wage earner categories are common. Wage earners in the private sector are mainly divided into laborers

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(offering bodily work), employees (offering intellectual work) and managerial staff (directing and monitoring employees), with laborers having minimal compensation when dismissed and managerial staff not being subject to the requirements as to the time frame of employment – including regulations on recreation. Special protective provisions apply to minors (Law 1837/1989; Presidential Decree 62/1998), while Law 1414/1984 ensures for the woman wage earner complete equality with regard to access to employment, working terms, remuneration and generally all her working rights. Legislation for individuals with special needs incorporates many provisions of modern social policy, including the obligation of an employer of more than 50 individuals to employ a certain per centage of such workers (Law 2643/1998). Those working in the public sector are distinguished into public servants (whose work is regulated only by public law) and wage earners of the public sector subject to a work agreement under labor law. The remaining workers are subject to special legislation codified in Presidential Decree 410/1988 where, however, many ordinary labor law provisions are restated. C.

THE EMPLOYER

From the employer’s point of view, apart from the legislation on the transfer of a community-based enterprise and generally on any change of the person of the employer whereby the new employer assumes the totality of obligations and rights from the workplace agreement as well as the payment of owed wages (Presidential Decree 178/20021), mention must be made to the employer’s right to ‘loan’ a wage earner and, more recently, the recognition of a right of engagement via the offices of temporary employment. The law establishes, among others, the employer’s obligation to pay to the wage earner the compensation that is provided for the remaining wage earners of the business. Sometimes a workplace ‘split’ occurs resulting in what I have previously termed a ‘tripartite’ workplace relationship, in other words, a relationship with two employers with different roles (direct and indirect employer, primary and secondary employer, main and fictitious employer). The formation of groups of enterprises is quite usual but Areios Pagos has not received well the substitution of a single employer. Nevertheless, inferior courts recently considered the mother company responsible for payment of wages on the basis of the idea of abuse of legal personality. Also, the modern problems that outsourcing has generated have not as yet been confronted adequately in labor laws.

1. Transposing Council Directive 98/50 of June 29, 1998 amending Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, OJ L 201/88– 92, 1998.

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As regards the workplace agreement, while brokerage of work is prohibited (ILO Convention 95 concerning the protection of wages, ratified by Law 3248/1955, GG A 138), private offices of work advisers have been legalized (Art. 5 II of Law 2639/1998, as modified by Law 2874/2000 and Presidential Decree 160/1999), albeit under strict terms prohibiting the financial burdening of wage earners. E.

TERMS OF WORK

Regarding the work terms, we will limit ourselves to two basic sectors that concern work time (see below, under 1) and health, safety and injury (see below, under 2). 1.

Work Time

In relation to work time, the traditional system of legal time, which is the general system, must be distinguished from the potential system of flexibility and the organization of work time on an annual basis. According to the traditional system, legal time is determined by eight hours daily and by 48 hours weekly (Presidential Decree of June 27, 1932). However, since 1984, the 40-hour, five-day week was established for the majority of employees (Collective Agreements of 14 February 1984). The possibility of exceeding this time limit is possible through two institutions, additional work and overtime. Additional work is that exceeding the 40-hour week by five hours a week, distributed equally to all five days. This is permissible by the employer’s decision alone but with an increase of 25 per cent in pay (Art. 1 of Law 3385/2005). Overtime is work after the 45th hour, which practically means daily work above nine hours. This is possible but subject to notice, a maximum daily limit of three hours and an annual maximum determined by the Minister of Employment (Law Decree 515/1970). The cost of overtime is high because a 50 per cent increase is provided for overtime up to 120 hours per year and 75 per cent for hours exceeding this limit. If the terms of the law are not observed, overtime is considered illegal and is remunerated at 100 per cent. Lesser legal time is also possible, i.e. partial employment, and is regulated by Article 2 of Law 2639/1998 and Articles 7 and 8 of Law 2874/2000. This requires written documentation, the proportional treatment with the full-time worker and the right of priority to fulltime employment. There are two types of flexibility of annual work time. The first includes a four-month period within which the segments of increased and decreased employment are determined. The second uses the whole year as a reference point within which the period of increased employment is up to 32 weeks with a total limit of 256 hours. In both cases, a collective agreement, concluded with the workers’ representatives of the business, is required. In the first situation, however, if no

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agreement exists, a tripartite committee finally decides – where the main role is assigned to the work inspector (Art. 2 of Law 3385/2005). Fluctuations of time do not result in fluctuations in wage, so long as the 40-hour work per week limit is observed. Annual paid leave is also included in the work timeframe and amounts to four weeks (20–22 days in the five-day workweek, or 24–26 days in the six-day workweek system) and, after ten years of service in the business or 12 years in previous service generally, 25 days in the five days, 30 days in the six days (Law 539/1945, as repeatedly modified by national general collective work agreements). At the same time, the wage earner is entitled to all the benefits as if working during leave days plus one-half of his monthly wage as leave benefit. Special authorizations are also provided for various categories such as student leave, etc. 2.

Health, Safety, and Injury at Work

There are many rules on health and safety of workers at the working place. A large part of the legislation is transposition of, or adaptation to, Community law. Since 1985, the main aim of the legislator is prevention, e.g. from chemical factors, etc. Generally the legislation, which is particularly technical and detailed in this sector, is divided into types: on the one hand law-frames (Laws 1568/1985 and 2224/1994) creating general obligations and rights, and on the other hand an abundance of statutes that specifically regulate the issue of safety because they either cover a particular kind of enterprise activity (e.g., shipping) or they protect from a concrete danger (e.g., explosives). The legislator does not assign the observation of safety to the employer alone. Parallel bodies of control have been created, such as the Safety Technician, the Doctor at the Working Place and the Committee of Health and Safety at Work. In addition, compensation for working accidents and occupational illnesses is provided for. However, when the employer is insured with IKA (Social Insurance Organization; see Chapter 15, Section III B) and the accident is not due to his fault he is exempted from liability. The employer is only potentially criminally liable and responsible for pecuniary satisfaction for moral damage. F.

WAGES

Wages are determined by collective work agreements. The general minimum wage limit is determined by national general collective work agreement given that Greece is one of the few countries that established an inter-sectoral general collective agreement. Minimum wage limits are determined according to sector and business under the corresponding collective workplace agreements. The legal regime for wages is particularly extensive. Generally, the legislator handles the wage as he would handle a claim for maintenance (prohibition of cession, confiscation, etc.). Moreover, beyond the classic wage there exist additional bonuses for

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overtime, etc. Additionally, the principle of equal treatment of men and women is completely established. G.

REMAINING OBLIGATIONS OF THE EMPLOYER APART FROM WAGES

The following non-wage obligations, some of them established by the courts, also exist: (a) the obligation of respecting the justified interests of wage earners, also known in German law as ‘obligation of providence’, that is founded in good faith (e.g., obligation to safeguard the workers’ property against theft); (b) the obligation of respecting the personality of the wage earner that has been recently connected to the obligation to respect personal data; (c) the obligation for equal treatment that is also supported by good faith and that allows each worker to take advantage of benefit extended to certain colleagues if he proves that his exclusion is without an objective reason (arbitrary discrimination); and (d) the obligation of employment, which means that for those categories of workers where employment is connected to their good name it is not enough for the employer to just pay them, but they should moreover be substantially employed. H.

GENERAL PRINCIPLES

Basic principles include: (a) equal treatment of men and women regarding wages and remaining terms of work, guaranteed constitutionally (Arts 4 I, 22 Const.), recognized as an EU right and regulated in detail by Law 3488/2006 (which abolished most provisions of Law 1414/1984); and (b) non-discrimination on the basis of religion, nationality, race, sexual orientation, etc (Law 3304/20052). Also applicable to all decisions of the employer is Article 281 CC prohibiting abuse of rights (see above, Ch. 5, Section IV B). Practically this means that the decisions of the employer (e.g., redundancies) which are not justified by the general interest of the enterprise but made for personal reasons, such as revenge, are considered invalid. I.

DISSOLVING A WORK RELATIONSHIP (WORK CONTRACT)

A work relationship is dissolved for redundancy. The division of workplace agreements into indefinite and fixed-time agreements is decisive.

2. To this regard see also Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22–26, 2000 and Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, OJ L 303/16–22, 2000.

Labor Law 1.

325 Indefinite Agreements

Termination of a work agreement of indefinite time by an employer is subject to certain conditions such as written notification or adequate warning; compensation is doubled when the proper notice period is not observed (Laws 2112/1920 and 3198/1955). Termination may be nullified when these terms are not observed, and the employer is compelled to continue to pay the wages so long as he does not establish a legal basis. The amount of compensation due to termination for employees begins at a monthly wage that increases progressively depending on service time (e.g., after ten years of service it amounts to six months’ wage) and ends at 24 monthly wages for those with over 28 years of service. For laborers it is much less. Compensation begins at five daily rates ending in 160 days for those with 30 years of service. The obligation of compensation is not terminated in case of neglect of responsibilities but only upon commitment of criminal acts. Contrary to most Western European laws, termination of employment is permitted without the employer having to justify his action or invoke some reason. Consequently, an employer can dismiss freely according to his financial requirements, e.g. to reduce labor costs. However, the courts have put up a barrier in order to prohibit abuse of right (Art. 281 CC; see above, H, and Ch. 5, Section IV B) so that termination of employment is invalid when done not in the interests of the business but because a wage earner has behaved in a manner disapproved of by the employer. For example, dismissals are considered invalid when made for lawful trade union or political involvement not welcomed by the employer, or because an employee resorted to an intervention by work inspectors or the courts, or generally exercised his rights in a manner that dissatisfied the employer. Specifically, dismissals due to redundancy are treated by the courts as abusive when an employer does not follow the proper social norms: in order for them to be valid, the employer should prepare a table of wage earners classified into four categories on the basis of objective criteria, namely work output, period of service, family responsibilities, and general financial condition. In multiple redundancies that exceed four wage earners a month per a company that employs between 20 and 200 wage earners, and 2 to 3 per cent a month for enterprises that employ above 200 wage earners, Directive 75/1293 applies as modified (Law 1387/1983). However, in Greek law, contrary to most European countries, the possibility of preventing mass dismissals remains valid by decision of the Minister of Employment. Special legal and practical rules apply to a redundancy which was created by a unilateral harmful change of working conditions by the employer. Within his managerial rights, an employer may make decisions that modify the terms of employment (ius variandi). It is, however, obvious that this power must not harm any legal rights and must conform to the conditions of the work agreement. When it exceeds these limits, it is considered as a violation of working 3.

Council Directive 75/129 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 48/29–30, 1975.

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conditions. The wage earner then has the right to accept or decline. In the former case, the agreement is considered to have been modified by new terms. In the latter case, according to Article 7 of Law 2112/1920, the modification is considered as a unilateral harmful change of working conditions and the wage earner can disjunctively either seek compensation and leave, or consider the dismissal invalid and ask for overdue wage payments. If the employer wants to alter the working terms in a valid way, he has the right to propose a change for redundancy, where the wage earner will not be able to accept the new terms. 2.

Fixed-term Agreements

In a fixed-term agreement, premature dismissal for redundancy can take place only for very significant reasons (Art. 672 CC); otherwise, compensation is due. On the one hand, when the needs of a company are constant, a fixed-term agreement is considered to violate provisions for compensation and is treated as an indefinite one. This long tradition, which goes back to Article 8 III of Law 2112/1920, has been strengthened by Directive 1999/70,4 incorporated by virtue of Presidential Decrees 81/2003, 164/2004 and 180/2004. On the other hand, for enterprises employing ‘stable’ personnel, like banks and the public sector, the retirement age provides the end of the term. In such situations, dismissal for redundancy is possible for serious concrete reasons. J.

FLEXIBLE WORK TERMS

As illustrated above, it is obvious that Greek legislation has completely legalized the flexible or informal labor relationship, including partial employment, temporary employment, fixed-term agreement, work time on an annual basis, and free dismissals, with certain restrictions for mass firings. As Greek law does not require the employer to justify any dismissals, in practice he is free to do so at will. III.

COLLECTIVE LABOR LAW

First, let us consider the trade union right. Law 1264/1982 was a turning point, because trade union freedom was for the first time established completely – mainly the freedom of creation, internal operation and action. Trade union organizations are made up of associations recognized by judicial decision. The law regulates their democratic operation (election, decision-making, etc.). These rules pave the

4.

Council Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ L 175/43–48, 1999).

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way towards judicial disputes where the cancellation of unlawful decisions may be sought. The pursuit of unity has led to the acceptance of a proportional electoral system within the trade union administration resulting in representation within the same organization of various trade union parties with various ideologies. Thus, in each organization (federation, confederation) workers from all ideological tendencies participate. This enables the creation of a General Confederation that engages in high-level collective negotiations. This is an important particularity compared to the legislation of other countries. Moreover, the law permits the exercise of trade union activity in workspaces, and protects trade union action from employer interference (Art. 16 of Law 1264/1982). A.

COLLECTIVE NEGOTIATION

Following major reforms in 1990 (namely Law 1876/1990), collective negotiations currently ensure complete freedom to select the level that interested parties prefer. Thus, high-level negotiations are possible as are base negotiations. The possibility of multiple negotiations is also secured. This is why a wage earner may simultaneously participate in a sector-based collective agreement and an operational one, and a choice may have to be made. The law describes the various types of collective agreements and regulates contract terms (dominating system). However, it also provides interested parties with the option to put forward their own terms. The scope of collective work agreements is broad, so that it covers all work terms with certain restrictions for retirement issues. Following a long tradition, a national collective work agreement is also provided, which practically means that a high-level inter-professional agreement is to determine wages and employment terms for the totality of wage earners at the minimum general wage limit. Usually, after such a collective work agreement remains in effect for one or two years, other collective work agreements follow for each sector, profession or enterprise. To make sure that substantial negotiations take place, the law requires obtaining information and campaigning. B.

MEDIATION AND ARBITRATION

If collective negotiations fail, wage earners can either continue working or go on strike. However, for the peaceful resolution of differences, each party may resort to mediation and, in case of failure, to arbitration. The regulation of these two institutions contains some unique elements. Experience has shown that they are applied with success. One-third of collective negotiations lead to mediation and among them only roughly half end up in arbitration.

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The responsibility for resorting to mediation and arbitration lies with an independent organization of private law that is financed by contributions from workers and employers. It is called the Organization of Mediation and Arbitration (Οργανισμός Μεσολάβησης και Διαιτησίας, Organismos Meslolavisis kai Diaitisias; OMED). It is managed by 11 members of which six are elected by the worker and employer groups, two from academic circles (labor law and economics professors), one specializing in labor relations, one as a representative of the Ministry of Employment, and one as chairman elected by the other ten. In this way independence from the government is ensured, thus leaving to the employers and the workers the decisive word. OMED does not take the initiative. Its role is to select the mediators and arbitrators, to offer technical support, and to overlook the proceedings. Mediation is provided only in case of failure of negotiations, implying that essential negotiations on the basis of considered proposals should have preceded it. But failure also ensues if any party denies negotiation. The mediator is selected by common agreement or by lot after application by one of the two parties, and has wide-ranging duties such as the examination of witnesses, the carrying out of expert analysis, the search for information from employers and public services, etc. The mediator’s role expires: (a) with an agreement that is considered a collective work agreement; (b) by certifying the failure of mediation; or (c) through submission of his own proposal upon failure if he judges that the dispute should be the subject of arbitration. This last element is also the most original, because it constitutes a central point of connection between negotiations, mediation and arbitration. All parties have a deadline of five days to accept the proposal. If one rejects it – usually the employer, and the other accepts – usually the wage earners, the accepting party has the right to resort to arbitration, whose decision is henceforth obligatory for both parties. The proposal is usually rejected by employers not because it is partial but because disputes that go to mediation usually involve weak trade unions to whom employers refuse to offer wage concessions. The above arbitration may be characterized as almost obligatory but, as it stands, it is not contrary to ILO Conventions 154 concerning the Promotion of Collective Bargaining (Arts 6 and 16 III; ratified by Law 2403/1996, GG A 99) and 98 concerning the Application of the Principles of the Right to Organize and to Bargain Collectively (Art. 4; ratified by Law Decree 4205/1961, GG A 174). This is explained in connection to the facts that: (a) OMED is supported by both sides; (b) resorting to arbitration is marginal when bad faith of one party is obvious; (c) the decision of the arbitrator is limited in practice to provide for the minimum wages that a weak trade union cannot ensure; and (d) labor arbitration is totally insulated against government interference. Arbitration in Greece functions as a social contract that ensures social cohesion. That is why trade unions defend arbitration, while employers in their majority at least tolerate it. The 15-year application of this institution is considered successful since it has deterred major conflicts and safeguarded an elementary

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level of existence for workers in small enterprises and feeble trade unions. With the recent weakening of worker power, intervention by a third party in the form described is a decisive means of fighting poverty.

C.

WORK COUNCIL

The council of workers at the operational level also belongs to collective labor representation, as provided by Law 1786/1988. However, their role has been marginal because, in the Greek labor relations system, business-wide trade unions always had the first word.

D.

STRIKE

Striking is included among the trade union freedoms which are secured by the Constitution (Art. 23 II) and are further regulated by statute (Art. 19 et seq. of Law 1264/1982). The main characteristic of this regulation is that, to call a strike, the approval of a general assembly is needed, via secret voting. If called by a federation or confederation, the decision of the administrative council and prior warning are required. Therefore only trade unions have the right to declare a strike. Wildcat strikes are illegal, as are strikes with political characteristics, except for those that are related to labor problems and interests, provided that they are of short duration. For a strike not to be considered illegal the other side must receive a 24-hour notice (Art. 19 I of Law 1264/1982). At the same time, security personnel are required, while for enterprises of common utility additional restrictions exist. The right to strike must not be abused. A lawful strike does not cause a breach of the labor contract. On the other hand, an illegal strike is considered to be a breach of labor contract.

BASIC BIBLIOGRAPHY (in Greek unless otherwise noted) P. Agallopoulos and D.A. Travlos-Tzanetatos, ‘Grèce’ in XIII congrès mondial de droit du travail et de la sécurité sociale, rapports nationaux, Thème I: L’impact des difficultés économiques de l’entreprise sur les conditions de travail (Athens, 1991) 285–338 [in French]. A. Karakatsanis, Collective Labor Law (3rd edn, Athens-Komotini, 1992). A. Karakatsanis, Employment Law (4th edn, Athens-Komotini, 1992). A. Kazakos, Arbitration of Collective Disputes (Thessaloniki, 1998). I. Koukiadis, Collective Labor Law, vol. I: Trade Union Freedom (Thessaloniki, 1997); vol. II: Collective Negotiations (Thessaloniki, 1999).

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I. Koukiadis, Labor Law, Individual Work Relations (3rd edn, Thessaloniki, 2005). G. Levendis, Collective Labor Law (Athens, 1996). I. Lixouriotis, Individual Work Relations (Athens, 2005). C. Papadimitriou, ‘Grèce’ in XIII congrès mondial de droit du travail et de la sécurité sociale, rapports nationaux, Thème II: Les modalités de règlement des conflits collectifs d’intérêts (Athens, 1991) 255–266 [in French]. A. Stergiou, ‘Les rapports internes entre le syndicat et ses membres en droit grec (la législation de la démocratie syndicale)’, RIDC 40 (1988) 57–85 [in French]. D. Zederlis, Individual Work Relations (Athens, 1999).

Chapter 15

Social Insurance Law Konstantinos D. Kremalis*

I.

INTRODUCTION

With the onset of industrial reform in Greece in the mid-19th century, the first legislative moves towards the establishment of independent social insurance institutions, such as the Seamen’s Veterans Fund (1836), the Miners Insurance Fund (1882) and others, were taken. A large number of institutions were subsequently created for the protection of special professional groups of employees, independent professionals and public servants. The idea of creating a national insurance system for the protection of all people employed was first conceived in 1929.1 This idea has not been materialized to this date, but it has neither been abandoned. A composite social protection system is presently in existence, called social insurance system (σύστημα κοινωνικής ασφάλισης, systima koinonikis asfalissis) because it is mainly what the term denotes. The characteristic trends of contemporary social policy are personal and territorial expansion of protection, concentration of social insurance on certain basic institutions, and establishment of a minimum level of social protection. The law of social insurance basically draws its rules from the Constitution, international conventions, Community law, special legislation, various regulations, * Professor of Law, Athens University. 1. Chr. Agallopoulos, Social Insurance (Athens, 1955) 18–27 [in Greek]. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 331–339. © 2008, Kluwer Law International BV, The Netherlands.

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and certain principles of law. More specifically, under Article 22 V Const., social insurance for working people has become the object of public concern (κοινωνική μέριμνα, koinoniki merimna). This means that the State is bound to establish and ensure the necessary conditions for efficiency of the social insurance system. Thus, a social right directed to social insurance is recognized for the working people,2 the content of which is defined by the legislator within the framework of social insurance institutions. Nevertheless, this provision does not guarantee an enforceable right of the insured people to claim specific benefits from the insurance organizations.3 Financing of social insurance is provided in part on the basis of reciprocity (interdependence) between contributions and benefits, and in part on a social solidarity basis between generations and within the same generation. II.

ORGANIZATION AND ADMINISTRATION OF SOCIAL INSURANCE

A.

MULTIPLICITY OF SOCIAL INSURANCE SYSTEMS

The services of social insurance are provided by independent institutions of public law aiming at protecting the individuals of a certain community (profession, enterprise, region, etc.) against predetermined insurance risks. The diffusion of social protection into various insurance institutions may, as stated above, be historically justified; it is nevertheless characterized by strong social inequalities and by a high degree of uncertainty, so far as the content and enforceability of social insurance rights are concerned.4 More recently, a trend towards the merger between main and subsidiary social insurance institutions has been observed. Law 2676/1999 established the framework for the creation of the Organization for the Insurance of Self-employed Professionals (Οργανισμός Ασφάλισης Ελεύθερων Επαγγελματιών, Organismos Asfalisis Eleutheron Epangelmation; OAEE) consisting of the previous social insurance institutions of merchants, handicraftsmen, etc., whereas Law 3029/2002 provides for the gradual incorporation of various social insurance institutions with IKA5 until 2008. Undisputedly, such legal measures pave the way towards a unified social insurance system. As a rule, social insurance institutions (ασφαλιστικοί φορείς, asfalistikoi foreis) enjoy legal personality and use public authority as legal entities of public law. There are, nevertheless, certain institutions serving social insurance purposes, which have been created by private initiative or have been qualified by the legislator as belonging to the ‘private sphere of law’. For many years, it was not clear enough whether private non-profit institutions qualify as social 2. SSC 16/1983, EDKA 26 (1984) 320–321 held, however, in strict adhesion to the constitutional wording, that only the social right of those who offer dependent work is secured. 3. K. Kremalis, ‘Hellas-Social Security Law’ in International Encyclopaedia of Laws, R. Blanpain (ed.) (The Hague, 2004) 28. 4. A. Petroglou, Social Insurance Law, vol. I (Athens, 1974) 61–63 [in Greek]; P. Kyriakoulakos, Social Policy General Notions – Social Insurance (Athens, 1970) 96 [in Greek]. 5. On the latter see below, Section III B.

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insurance organizations.6 Finally, in conformity with a long-standing doctrine,7 Law 3029/2002 introduced as an integral part of the social insurance system the private institutions of Occupational Pension Funds (Ταμεία Επαγγελματικής Ασφάλισης, Tameia Epangelmatikis Asfalisis), controlled by the independent National Actuarial Authority and supervised by the Ministry of Employment and Social Protection. B.

SELF-GOVERNANCE OF SOCIAL INSURANCE INSTITUTIONS

Social insurance institutions were hardly ever self-governed. The basic reason for this is the lack of representativeness of their organs and their budgetary dependence on State resources. Since the early days, the governing boards of insurance institutions have been established by decisions of the competent Minister (Art. 2 of Law 1022/1946) and composed of representatives of the State, as well as of the insured, the pensioners and the employers, who have been proposed by the respective organizations. According to Article 20 of Law 1539/1985, in every new board ‘the majority of its members shall consist of representatives of the insured and pensioners.’ In this instance, the Minister is bound to appoint the representatives designated by trade unions and professional organizations covering the totality of the insured or the pensioners.8 This provision on majority, however, is undermined by Article 87 II of Law 1892/1990 and the consequent appointment of a large number of experts in the governing boards.9 With regard to budgetary dependence of insurance institutions, it should be noted that, on the one hand, the Minister’s approval is required for any qualitative or quantitative improvement of insurance benefits. On the other hand, insurance institutions were for a long time not allowed to make free use of their reserve funds (αποθεματικά, apothematika). Prior to the enactment of Article 13 of Law 1902/1990, reserve funds were blocked at the Bank of Greece at relatively low interest rates, namely 4–15 per cent (Arts 1, 2 of Law 1611/1950). An overview of social insurance assets between 2003 and 2004 indicates an increase in the value of securities by 16.91 per cent, of stocks by 36.21 per cent, of deposits by 19.98 per cent, and of real estate by 2.86 per cent.10 It is obvious that decreased State dependency in previous years has enabled an advantageous management of assets for social insurance organizations. 6. 7. 8. 9. 10.

See SE 5024/1987, EDKA 30 (1988) 233–236, opposing such qualification, and Article 2 IV of Law 2084/1992, setting up some favorable financial conditions for the relevant classification. K. Kremalis, Social Insurance Law (Athens, 1985) 72–74 [in Greek]. G. Psilos, ‘Representation of the Insured in the Social Insurance Institutions’, Syndicalistic Review 2 (1985) 23–30 [in Greek]. SE 1558/2005, , June 26, 2006. Ministry of Employment and Social Protection, Social Budget 2005 (Athens, 2005) 521 [in Greek, with a summary in English].

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III.

FINANCING OF SOCIAL INSURANCE

A.

INSURANCE CONTRIBUTIONS

The insured are obligated to pay contributions (ασφαλιστικές εισφορές, asfalistikes eisfores) to the respective social insurance institutions. Contributions paid by farmers and civil servants have been rather insignificant. Theoretically, as well as practically, the determination of the parties bound to contribute to the social insurance of employees is quite complex. The correlation between the above and those under obligation to pay salaries is almost self-evident. Article 8 V 1 of Law 1846/1951, however, defines the ‘employer’ (εργοδότης, ergodotis) on the basis of extra-legal considerations, that is profit resulting from work. In fact, any emphasis on the criterion of economic interest strengthens even more the financing of institutions, especially in the so-called tripartite employment relationships (i.e. those established between three contracting parties). There is controversy, however, as to what extent the law of social insurance uses the labor-coined terms unaltered, i.e., employer, employee, remuneration, etc., or whether they are to be interpreted in the context of specific requirements by the relevant branch of law.11 The second alternative seems to be more appropriate. The legal nature of social insurance contributions has given rise to scholarly debates. The view that they constitute a financial burden similar to tax charges is based on the provisions that distinguish the obligation to make contributions from: (a) payment of remuneration (Art. 29A of Presidential Decree 278/1982); and (b) the immediate expectation of benefits (Art. 4 VII of Law 1302/1982). The courts, however, accurately hold that contributions literally constitute a part of remuneration temporarily reserved for future needs.12 When the insured or other persons bound to make contributions, such as employers, deny or delay payment thereof, compulsory measures may be taken against them. The public institutions of social insurance are authorized by law to immediately order payment of contributions without having recourse to ordinary legal remedies. Within this authority (administrative constraint), the individual administrative acts are regarded as enforceable instruments that determine the extent of payment to be made and require the debtor to effect payment within a fixed period of time.13 There are also other administrative and economic sanctions, such as the prohibition of obtaining loans from credit institutions (Art. 2 of Law 1239/1982) and the surcharge of additional penalties (Art. 21 III of Law 1902/1990). A limited criminal responsibility forms part of these measures as well (Art. 1 I of Necessity Law 86/1967). 11.

G. Papachatzis, System of Greek Administrative Law (5th edn, Athens 1976) 148 [in Greek]; K. Kremalis, Social Insurance of Employed Persons (Athens, 1982) 57–76 [in Greek]. See also SE 1104/1963, EDKA 5 (1963) 516; 2253/1980, EDKA 22 (1980) 593–594; 626/1981, EDKA 23 (1981) 331–334. 12. SE 900/1983, EDKA 26 (1984) 10–11; AP (full bench) 17/2005, EDKA 47 (2005) 370–373. 13. F. Chatzidimitriou and G. Psilos, Insurance Legislation (Athens, 1984) 391–406 [in Greek].

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According to a general principle expressed in Article 26 VII of Law 1846/1951, any violation in the payment of these contributions does not jeopardize payment of social insurance benefits to salaried employees. It does, however, cancel the insurance protection provided to independent professionals,14 due to the strong element of reciprocity in the insurance relationship. B.

SOCIAL SOURCES AND STATE ECONOMIC SUPPORT

The legislator often places part of the burdens of a certain insurance community on society at large by establishing the so-called social sources (κοινωνικοί πόροι, koinonikoi poroi). In assessing the value of goods or services rendered in some transactions, a certain percentage is earmarked for insurance institutions. For example, in order to obtain a driver’s license, a person must pay a sum in favor of the Automobile Owners’ Pension Fund. Despite their variety, social sources are, actually, indirect taxes (see Ch. 19, Section IV) in favor of third parties. The courts correctly hold that extraordinary support of an institution through social sources is inconsistent with the principle of proportionality between contributions and benefits, and justifies the imposition of a ceiling on insurance benefits contrary to proper insurance doctrine.15 Every time the insurance protection of a substantial group of people is actuarially underrated, the mechanism of wider social solidarity, that is of general taxation, is put in motion. This explains, for instance, the exceptional economic support provided by the State to the Professional and Handicraftsmen Fund of Greece under Article 1 II of Law 1275/1982, in an effort to increase the lowest limits of pensions provided by that Fund. State contributions for the creation of socio-insurance capital consists of fixed sums where the State itself emerges as an institution of social insurance for public servants, or when it has committed itself to make regular, often yearly, contributions as in the case of the insurance regime of the Social Insurance Organization, i.e. the general social insurance organization of dependant workers (Ίδρυμα Κοινωνικών Ασφαλίσεων, Idryma Koinonikon Asfaliseon; IKA; Art. 24 VIII of Law 1846/1951). The last-mentioned provision, however, has been erroneously construed as a guaranty of the State only in cases of economic insufficiency of this particular insurance institution,16 thus resulting in a far-reaching inapplicability of this provision, as well as in economic deficits that cannot be remedied without sacrifices by the insured. According to Article 4 of Law 3029/2002, from 2003 to 2032 the State will annually subsidize IKA with a capital which, on an average base, corresponds 14. AP 840/1976, EDKA 18 (1976) 559–561; 986/1979, Epitheorisis IKA 14 (1980) 782–784; SE 625/2005, , June 26, 2006. 15. SSC 9/1980, EDKA 23 (1981) 46–48; SE 163/2005, EDKA 47 (2005) 189–195; 638/2005, EDKA 47 (2005) 344–351. 16. Chr. Agallopoulos (above, ftn. 1) 155; K. Kremalis (above, ftn. 7) 185–187.

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to 1 per cent of the GNP. If deficient social insurance organizations accept their incorporation to IKA the State will cover all their deficits. Following actuarial studies, the amount of the above State subsidy or coverage may be adjusted to the real needs. IV.

SOCIAL INSURANCE BENEFITS

A.

KEY CHARACTERISTICS

Insurance benefits (ασφαλιστικές παροχές, asfalistikes paroches) correspond to the immediate targets of social insurance schemes. Accordingly, they are divided into measures taken for the restitution of the insured person’s work capacity and measures taken for balancing out the income lost from social insurance risks. Benefits are further divided into: (a) compulsory and discretionary; (b) periodical and lump sum; and (c) in cash and in kind. The legislative provision giving to an insurance organ authority to award the pension by administrative act actually reveals the legal basis of the beneficiary’s right. Such right is of public character and, therefore, subject to all constraints proper to public activity, including the principle of the rule of law. The judicial settlement of disputes related to social insurance benefits follows the system of administrative dispute resolution put into place by the rules of administrative justice (see, indicatively, Law 702/1977, Presidential Decree 341/1978, Law 1406/1983, Presidential Decree 18/1989, and Law 1868/1989). It should be underlined, however, that a beneficiary’s social insurance right may correspond to a contractual relationship. In such case, of course, any relevant conflict is submitted to the control by civil courts. The social insurance system does not include separate insurance branches regarding the insurance risks of work accidents and/or professional diseases. If an accident at work or an occupational disease causes temporary health damage, the person concerned can claim for sickness benefits, whereas in cases of lasting health damages the person may be entitled to invalidity pension. In cases of death, a survivors’ pension is allowed. Moreover, there is no predetermined minimum protection or minimum pension across the board. Only after the introduction of the ‘Pensioners’ Social Solidarity Allowance’ (Επίδομα Κοινωνικής Αλληλεγγύης Συνταξιούχων, Epidoma Koinonikis Allilengiis Syntaxiouchon; EKAS) by virtue of Law 2434/1996, were all recipients of old age, invalidity or survivors’ pension entitled to a means-tested supplementary cash benefit. B.

PREREQUISITES OF INSURANCE BENEFITS

The requirements for recognition and claim of specific social insurance rights present a great variety. This is due to the deep differentiation of social insurance

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schemes based on professional categories. Systematization, to some extent, of benefit-entitlement conditions, as they stand today, leads to a classification in two main categories, the substantive and the formal one. Substantive requirements are those needed to determine to which person and for what purpose the benefits are granted. The formal requirements refer to the procedural steps that have to be taken before insurance benefits are granted. Substantive requirements cover: (a) the circle of entitled persons; (b) the presence of an insurance risk (ασφαλιστικός κίνδυνος, asfalistikos kindynos); and (c) a certain insurance period (ασφαλιστική περίοδος, asfalistiki periodos). The circle of entitled persons, i.e. the working individuals, as well as spouses, children, parents, brothers and sisters, and grandchildren thereof, is expanded or restricted by the legislator, depending on the insurance institution and the kind of insurance benefit provided thereunder. Regular insurance risks include sickness, maternity, disability, industrial injury or disease, old age, death of a family protector, lack of housing, and the destruction of agricultural production. In laying out time prerequisites, the legislator is often satisfied with the mere running of an insurance period (Art. 28 I of Law 1846/1951); in other instances, however, the law imposes a specific working period in relation to the presence of specific risk, such as sickness (Art. 35 I 2 of Law 1846/1951).17 The insurance period runs, as a rule, together with the employment and contribution periods. Exceptionally, under legally prescribed conditions, periods of inactivity can be added thereto (fictional18or permissive insurance19). These possibilities, along with the options of formal20 and consecutive21 insurance, give daily rise to some interesting legal questions. Formal requirements include: (a) the filing of an application; and (b) the competence of the insurance officials to take the required measures. C.

TYPES OF INSURANCE BENEFITS

The most important cash benefits are pensions (συντάξεις, syntaxeis), which are usually earning-related and calculated according to the previous salary/income of a certain time period. Old-age pension is granted after a certain age has been reached (55–65 years) that varies according to each social insurance regime, and after completion of a certain period of work (25–35 years). Pensioners are occasionally allowed to retain a parallel limited professional activity. Disability pen17. 18.

SE 2983/2003, EDKA 46 (2004) 605–607; 941/2005, EDKA 47 (2005) 456–459. SE 2983/2003, ibid.; 351/2004, EDKA 47 (2005) 207–209; A. Petroglou, ‘Cases Regarding Recognition and Redemption of Fictional Periods of Insurance’, EDKA 7 (1965) 129–130 [in Greek]. 19. SE 2188/2002, DD 16 (2004) 486–488; 3382/2003, EDKA 46 (2004) 509–512; F. Chatzidimitriou and G. Psilos (above, ftn. 13) 271–287. 20. SE 2727/2004, 87/2005, and 693/2005 , June 26, 2006; V. Rotis, Formal Insurance and Formal Non-insurance (Athens, 1977) [in Greek]. 21. SE 3635/2004, 96/2005, and 627/2005, , June 26, 2006; A. Metallinos, Evolution of the Institution of Consecutive Insurance (Athens, 1982) [in Greek].

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sion is granted after assessment of the influence of the injury that caused loss of income to the individual. Medical diagnosis has an important binding force with regard to the percentage of disability. A full pension is granted to those that are disabled beyond 80 per cent (Art. 27 V(a) of Law 1902/1990). Death benefits are granted to the widow(er) and the other dependent family members. All pensions aim at replacing the loss of income from the related activity. They are, therefore, estimated at a percentage of 70–80 per cent of the earnings or income recently received. There are lowest and highest pension limits. Pensions are automatically readjusted, according to the increase of the civil servants’ salaries as determined by the State. Social insurance protection also includes periodical cash benefits, such as allowances (επιδόματα, epidomata) for sickness, maternity, industrial injury or disease, unemployment, family charges and mobilization and other lump sum payments (εφάπαξ παροχές, efapax paroches) such as marriage and birth allowances, funeral expenses and housing loans. The most important benefits in kind (παροχές σε είδος, paroches se eidos) are medical, hospital and pharmaceutical services and goods. Following the establishment of the national health System (Εθνικό Σύστημα Υγείας, Ethniko Systima Ygeias; ESY) by Article 1 of Law 1397/1983, as amended, these benefits result in health care independently from any social insurance institution or branch. The social protection within the ESY is sufficiently decentralized, free of charge and more extensive as compared to sickness insurance schemes; however, it is burdened by administrative complications, lack of financial background as well as of social consensus.22 These deficiencies caused severe criticism, and the whole system has been revised to a large extent (towards privatization) by Laws 2071/1992, 2889/2001, etc. The modernization of ESY provides for regional structure, hospital reorganization, human resources development and the guarantee of patients’ rights. Benefits in kind also include working opportunities and professional orientation, as well as vocational training services carried out by the competent social policy organization, OAED (Οργανισμός Aπασχóλησης Εργατικού Δυναμικού, Organismos Apascholisis Ergatikou Dynamikou; Manpower Employment Organization). There are several programs against unemployment (indicatively related to Arts 29 I of Law 1262/1982, 15 I of Law 1346/1983, etc.), often sponsored by EU funds. However, the basic rules governing the legal relations and the relevant social rights have not been systematically dealt with as yet. Recently, Law 3385/2005 intensified the coordination of measures aiming at the enhancement of social cohesion, the promotion of competition of small and middle size companies, and the corresponding creation of jobs.

22.

K. Kremalis, The Right to Health Protection (Athens, 1987) 204, 234 [in Greek; including a summary in English].

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BASIC BIBLIOGRAPHY (in Greek unless otherwise indicated) Chr. Agallopoulos, Social Insurance (Athens, 1955). A.-D. Alexiadis, Introduction to Health Law (Thessaloniki, 1999). F. Chadjidimitriou and G. Psilos, Insurance Legislation (Athens, 1991). K. Kremalis, Social Insurance of Employed Persons (Athens, 1982). K. Kremalis, Social Insurance Law (Athens, 1985). K. Kremalis, The Right to Health Protection (Athens, 1987) [including a summary in English]. K. Kremalis, Legal Opinions on Social Law (Athens, 2000). K. Kremalis, ‘Hellas – Social Security Law’ in International Encyclopedia of Laws, R. Blanpain (ed.) (The Hague, 2004) [in English]. P. Kyriakoulakos, Social Policy – General Notions – Social Insurance (Athens, 1970). A. Metallinos, Evolution of the Institution of Consecutive Insurance (Athens, 1982). Ministry of Employment and Social Protection, Social Budget 2005 (Athens, 2005) [with a summary in English]. G. Papachatzis, System of Greek Administrative Law (5th edn, Athens, 1976). A. Petroglou, ‘Cases Regarding Recognition and Redemption of Fictional Periods of Insurance’, EDKA 7 (1965) 129–130. A. Petroglou, Social Insurance Law, vols I–II (Athens, 1974). G. Psilos, ‘Representation of the Insured in the Social Insurance Institutions’, Syndicalistic Review 2 (1985) 23–30. V. Rotis, Formal Insurance and Formal Non-insurance (Athens, 1977). A. Stergiou, Constitutional Consolidation of Social Insurance (Thessaloniki, 1994).

Chapter 16

Judicial Organization and Civil Procedure Konstantinos D. Kerameus*

I.

INTRODUCTION

Judicial organization and civil procedure have grown in recent years to relatively high stature in Greece. This is true both at the level of scholarly production as well as in the practice of law. The reasons for such a comparatively privileged treatment of procedural matters within the entire Greek legal system may be traced in two directions: the first pertains to the statutory regulation of procedural issues, the second to the conditions of law enforcement in the Greek courts. In Greece, judicial organization and procedure have always possessed clear and numerous constitutional underpinnings. The Constitution of 1975 (as amended in 1986 and 2001) has stressed still more the immediate relevance of constitutional commands. First, a whole section of the Constitution (Section V of Part Three, Arts 87–100A) deals with ‘Judicial Power’: Chapter One (Arts 87–92) bears the title ‘Judicial Officers and Staff’; Chapter Two (Arts 93–100A) is devoted to the ‘Organization and Jurisdiction of Courts’. Second, a large number of other

* Dr iur., Dr h.c. mult., Professor of Law (emer.), Athens University; Director, Hellenic Institute of International and Foreign Law; President, International Association of Legal Science. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 341–378. © 2008, Kluwer Law International BV, The Netherlands.

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constitutional provisions have a direct or indirect procedural impact.1 Third, the right of access to courts has been raised to constitutional pre-eminence: under Article 20 I of the Constitution, ‘everyone is entitled to legal protection by the courts and may plead before them his position on his rights or interests, as specified by law’ (see also Ch. 3, Section V C 1). It is not surprising that these normative arrangements of the third branch of government have come to be regarded in Greece, as in some other countries, as a kind of ‘applied constitutional law’. Parliamentary activity has equally contributed to expanding the relevance of procedure, as compared to other legal disciplines. Between 1835 and 1968, Greece operated under the old Code of Civil Procedure, which had come into force shortly after the establishment of the modern Greek State and was the work of the Bavarian jurist Georg Ludwig von Maurer. The current Code, elaborated over some 30 years (1933–1964), was mainly influenced by Central European models, especially German and Austrian law. This major work of codification, in force since September 16, 1968, as well as its subsequent frequent amendments, have been fuelling a lively discussion on procedural issues among the members of the legal community. Procedure has thus become a matter of actual and permanent involvement for all lawyers-practitioners, judges and scholars alike. The conditions of law enforcement in the Greek courts have been exceptionally favorable to such a procedural orientation, or disorientation, of legal thinking and legal action. Leading scholars on procedure in the 19th century were either high court judges themselves, or extremely influential over judges. In more recent times, the large number of practicing attorneys and the intensely competitive climate that exists among them open the door of opportunity creating incentives for the use, or abuse, of procedural tactics. Some aggressive features of the Greek national character come out as well when people become litigants. Many judges regard procedure as their own professional ambit par excellence and cherish, in their opinions, a preference for procedural over substantive issues. This is particularly true with regard to the cases decided by Areios Pagos, the supreme court of the country in civil and criminal matters. Against such a background, one can well understand the exclamation contained in an influential Greek novel of the 1930s: ‘Procedure, my friend, procedure. As long as you keep procedure under control, you have the upper hand.’2 II.

JUDICIAL ORGANIZATION

The law governing judicial organization is not contained in a single enactment. Relevant provisions are to be found either in the Constitution or in many special 1. Arts 1 II, III; 2 I; 4 I, II, IV; 5 II–IV, interpretative clause; 5A; 6; 7; 8; 9 I(3), II; 10 II; 12 II; 13 V; 14 III(2), IV, VI(2), VII; 16 VI(4); 17 II, IV; 18 V(4); 19 I(2), III; 22 II; 23 II(2); 25 I–III; 26 III; 28 I(1); 29 II(4), III(1); 37 III(3); 47 I, II; 48 I(1); 49 III, IV; 51 III(2); 52; 56 I; 58; 61; 62; 65 VI(2); 76 VI; 77; 86; 102 IV(3); 103 IV(2),(3); 104 III; 105 V(2); 106 IV; 109 II; 111 III(b), V; 115 I–V; 118 I, II, V; 119 I. 2. G. Theotocas, Argo, vol. II (8th edn, Athens, 1980) 39.

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laws, some of them quite extensive. A comprehensive Code on Judicial Organization and the Status of Judicial Officers (Law 1756/1988, initially comprising 113 Articles) was again amended through various enactments, most recently Laws 2993/2002 and 3388/2005. A.

PRINCIPLES

Out of these scattered sources some general principles emerge: (a) Justice is administered by three hierarchies of courts: administrative, civil and criminal (διοικητικά, πολιτικά, ποινικά δικαστήρια, dioikitika, politika, poinika dikastiria; Art. 93 I Const.). In terms of judges, however, this distinction is reduced to a twofold scheme, since the same persons regularly alternate between civil and criminal courts. (b) Judicial officers are divided into ordinary judges (τακτικοί δικαστές, taktikoi dikastes) and public prosecutors (εισαγγελείς, eisangeleis; see Arts 26 II, 87 Const.). The latter mainly participate in criminal proceedings; in civil matters, only the Supreme Court prosecutor or his substitutes are required to submit their views on all cases pending before the full bench, as opposed to the sections of Areios Pagos in which the participation of the Supreme Court prosecutor was eliminated in 1995 (Art. 2 II of Law 2298/1995). (c) Judicial officers are career lawyers, entering early and remaining for life. They are appointed at the entry level after passing an examination for getting admitted to the National School for Judges that requires an additional period of study of about 16 months on top of regular legal education (see below, under E). Once appointed, judges and public prosecutors advance through the system from level to level on the basis of length of service and merit (see below, under D). There is neither jury nor other lay element in civil and administrative cases. Only in criminal proceedings do jurors take part in mixed courts competent to try some serious felonies (see Ch. 20, Sections III A 1, B 1). (d) There is some preference for judicial panels rather than single judges. Recent amendments, however, have markedly expanded the subject-matter competence3 of one-member tribunals. What remains true is that at least all appellate courts consist of more than one judge. B.

ORDINARY CIVIL COURTS

The Code of Civil Procedure provides for three types of district courts in civil matters: justices of peace (ειρηνοδικεία, eirinodikeia), one-member 3. The appropriate American term here would have been, of course, subject-matter jurisdiction. However, Greek law, following the Continental pattern, adopts a clear distinction between jurisdiction and competence. See below, under Section III A.

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(μονομελή πρωτοδικεία, monomeli protodikeia), and three-member district courts (πολυμελή πρωτοδικεία, polymeli protodikeia). The justices of peace, divided into 301 districts throughout the country, mostly handle cases of low monetary value or involving agricultural disputes. The one or three-member district courts, 63 in each category, sit in jurisdictional areas that roughly coincide with the boundaries of the respective prefectures (νομοί, nomoi). The three-member district courts have general original jurisdiction and also hear appeals from the justices of peace (Art. 18 II CCiv.P). Appeals from the other district courts, however, go to the 15 courts of appeals (εφετεία, efeteia) that sit in the largest cities of the country in panels of three judges and hear the case de novo both on the law and on the facts. The Supreme Court (Aρειος Πάγος, Areios Pagos) sits in Athens and normally hears cases in panels (τμήματα, tmimata) of five justices, or in full bench (Ολομέλεια, Olomeleia). This latter term denotes that about half of the total number of 66 justices are entitled to participate, a quorum being 17; this not considered a regular appellate court, but only a court of cassation. This type of court confines its extraordinary review to questions of law, having no authority to reverse findings of fact (see below, Section VIII E). C.

ORDINARY ADMINISTRATIVE COURTS

A similar structure has been extended in recent years to the administrative courts as well. Law 1406/1983 (see also Art. 94 I Const.) granted them jurisdiction over all substantive administrative disputes. There are 30 (one and three-member) administrative district courts and nine (three and five-member) administrative courts of appeal. Supreme court in the administrative jurisdiction is the Council of State (see Ch. 3, Sections II B 6 and V C 1). D.

JUDICIAL INDEPENDENCE

Both the Constitution (Art. 87 I) and legal doctrine distinguish the personal from the functional aspect of judicial independence. Under the former, all judicial officers, after a probationary period of two years, acquire life tenure. Compulsory retirement is now fixed at 65 or 67 years according to rank. During tenure, they may be dismissed only upon conviction for a serious offense, or upon adjudication of grave breach of discipline, illness, disability or professional incompetence, but not merely because their court or post is abolished. Even beyond that, the status of judicial officers (promotions, assignments, transfers, detachments) is within the authority of the Supreme Judicial Council (Ανώτατο Δικαστικό Συμβούλιο, Anotato Dikastiko Symvoulio), composed exclusively of members of the Supreme Court, with no participation of governmental or parliamentary representatives; only the promotion to the presidium of the Supreme Court (president, prosecutor, vice-presidents) is decided by the Cabinet. The concept of judicial self-governance is rounded out by entrusting supervision of judges only to superior judges and

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also by conferring disciplinary authority over them to councils consisting of these higher judges. The functional aspect encompasses the independence of the judiciary as a separate branch of the government. Legislation and administrative acts are subject to judicial review. Functional judicial independence exists within the judiciary itself as well; as in other Civil Law countries, no binding force of judicial precedents is formally recognized. In practice, however, courts tend to follow the holdings of prior cases (see below, Section VIII E; see also Ch. 2, Section III). E.

JUDICIAL STAFF

A high degree of personal independence is also granted to the secretarial staff (γραμματείς, grammateis) of all courts and prosecutorial offices (Art. 92 I–III Const.). Notaries in Greece (συμβολαιογράφοι, symvolaiografoi), for whom full legal education is required, follow the Latin pattern of the profession. Their number is limited, and particularly in large cities some notarial offices may prosper financially. In the countryside, the notary often operates as a sort of unofficial legal adviser. They are state organs rather than private people who simply receive or register a document. They draft and record authentic documents for many legal transactions, such as contracts, wills, donations, incorporations, and others. The role of notaries is central as regards transactions that involve property, especially real property. They also hold public auctions and proceed to the orderly distribution of funds (see below, Section XIII D after (d)), both in enforcement and non-contentious proceedings. Particularly, the former activity is important because its exercise is frequent and relevant, since funds to be distributed among creditors are more often than not insufficient. In this framework, much depends on the appropriate sequence of satisfaction of claims. The rank is decided upon, in the first place, by the notary holding the auction. Marshals (δικαστικοί επιμελητές, dikastikoi epimelites) officially serve judicial and extrajudicial documents, and discharge numerous functions during enforcement proceedings (see below, Section XIII). For all legal professions, graduation from one of the three law schools of the country (Athens, Thessaloniki, and Komotini in Thrace) is required. Graduation from a law school in another member state of the European Union is regularly recognized as well but a separate exam is still required in some circumstances. Students enter law school normally at the age of 18, immediately after high school. Law study takes four years at a minimum. Following graduation and a period of apprenticeship (18 months), mostly in a law firm, the candidates take a bar examination conducted by the courts of appeals. All practicing attorneys (δικηγόροι, dikigoroi) must be members of one of the bar associations (δικηγορικοί σύλλογοι, dikigorikoi syllogoi), which are public entities. The promotion of lawyers to appellate courts is generally a formality, depending mainly on time. Otherwise, there is no formal distinction among practicing attorneys with regard to the functions

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undertaken by them. Their number is high and their degree of specialization rather low, although recently somehow increasing. III.

JURISDICTION AND COMPETENCE

A.

DEFINITIONS

In modern Greek law, there has always been a sharp distinction between jurisdiction (δικαιοδοσία, dikaiodosia) and competence (αρμοδιότητα, armodiotita). Jurisdiction refers either to the state’s judicial power as a whole (the ‘international jurisdiction’ of the Greek State; see below, Ch. 17, Section II), or to the divisions of judicial authority according to the nature of the matter to be adjudicated; with respect to the latter, one speaks of civil, criminal, and administrative jurisdiction, exercised by the corresponding kinds of courts as prescribed in Article 93 I Const. The distinction between civil and criminal matters does not cause any significant problems; so far as administrative, in contrast to civil, disputes are concerned, they always originate in some administrative action undertaken in the exercise of public power. Competence, on the other hand, pertains to the allocation of judicial power within each jurisdictional division. It describes a court’s power to adjudicate specified matters. These matters, if identified by class, are assigned to one of the three types of district courts (see above, Section II B), constituting their subjectmatter competence (αρμοδιότητα καθ’ ύλη, armodiotita kath’yli). Additional links are, however, required to bring a dispute to a particular court, and, thus, make up its territorial competence (αρμοδιότητα κατά τόπο, armodiotita kata topo). This is similar to the American notion of venue. Besides subject-matter and territorial competence, there also exists the so-called functional competence (λειτουργική αρμοδιότητα, leitourgiki armodiotita), which denotes the respective adjudicative powers of various judicial authorities with regard to the same litigation, for example through the consecutive appellate levels. B.

SUBJECT-MATTER COMPETENCE

As a rule, subject-matter competence depends on the amount in controversy. The current lines of demarcation (Art. 14 CCiv.P) run at EUR 12,000 as between justices of peace and one-member district courts; and at EUR 80,000 as between the latter and the three-member district courts. The amount in controversy stands as defined in the complaint, without taking into account interest or other accessory claims (Art. 9 CCiv.P). Along with this value-conditioned competence, the Code of Civil Procedure adopts a parallel method of allocating civil disputes among these three types of courts, regardless of the amount in controversy, by expanding the competence of justices of peace and the one-member courts, according to

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the nature of particular species of disputes. Thus, to the former are allotted many cases involving farming, restrictions on property, transportation, or performance of some other services, and the internal working of associations and cooperatives (Art. 15 CCiv.P); to the latter, leases, employment, insurance and car accident disputes, claims of lawyers and of some other professionals, as well as most family litigation with financial impact, especially maintenance petitions (Art. 16 CCiv. P). C.

TERRITORIAL COMPETENCE

Territorial competence usually depends on the defendant’s domicile within the court’s district (Art. 22 CCiv.P), i.e. a person’s main and permanent establishment consisting of corpus and animus (Art. 51 CC; see also Ch. 5, Section II D).4 Business ‘domicile’ is an additional ground for related claims (Art. 23 II CCiv.P). If domicile is lacking, its place is taken by residence. Legal entities are deemed to be domiciled at their real seat.5 D.

EXCLUSIVE JURISDICTIONS

Special jurisdictions (ειδικές δωσιδικίες, eidikes dosidikies) are divided into exclusive and concurrent. There are six kinds of exclusive or ‘local’ jurisdiction where the action may not be brought anywhere else but there, even to the exclusion of a defendant’s domicile: (a) forum rei sitae, actions relating to property interests in immovables, including leases but not purchase and sale contracts, are allocated to the courts of the situs (Art. 29 CCiv.P); (b) forum hereditatis, descent and distribution claims among heirs and legatees as well as in favor of third parties go to the probate courts of the decedent’s domicile or residence at death (Art. 30 CCiv.P); (c) forum connexitatis, auxiliary claims, such as for interest on loans or for guaranties, are tried before the courts having jurisdiction over the main claim (Art. 31 CCiv.P); (d) forum societatis, ‘internal affairs’ corporate claims are adjudicated at the real seat (Art. 27 CCiv.P); (e) forum gestae administrationis ex decreto iudicis, where a court has appointed an administrator of the affairs or property of a person, all related claims are to be tried there (Art. 28 CCiv.P); and (f) forum reconventionis, counterclaims, which generally are only permissive and need not be related to the cause of action, belong, if asserted as such, to the exclusive jurisdiction of 4. The defendant’s domicile covers even causes of action unrelated to the forum, thus providing the basis of ‘general jurisdiction’. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, at 414, 415, 418 n. 12, 421 with n. 1, 423, 424, especially 414 n. 9 (1984); Burger King Corp. v. Rudzewicz, 471 U.S. 462, at 473 n. 15 (1985). 5. The ‘real seat’ is localized not necessarily in the district of incorporation, nor in the principal place of business, but where the decision-making authority over the affairs of the legal entity is located (see Ch. 17, Section I F).

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the court of the claim, provided they do not exceed its subject-matter competence (Art. 34 CCiv.P). E.

CONCURRENT JURISDICTIONS

Concurrent jurisdictions (συντρέχουσες δωσιδικίες, syntrechouses dosidikies), available at plaintiff’s option, include another six categories, resembling the US long-arm system: (a) forum negotii, suits on contracts and other juridical acts may be brought either at the place of making or of performance (Art. 33 CCiv.P); (b) forum delicti, actions on tort constituting a criminal act may be brought at the place of either conduct or its effects (Art. 35 CCiv.P); (c) forum gestae administrationis ex causis variis, disputes relating to various agency and administration relationships are adjudicated where the related conduct took place (Art. 36 CCiv. P); (d) forum continentiae causarum, suits against joint obligors may be brought at the domicile or a concurrent jurisdictional basis of any one of them; likewise, actions among the same person involving multiple immovables may be brought at the situs of any one of the immovables (Art. 37 CCiv.P); (e) forum matrimonii, personal, marital and divorce matters go to the courts of the common residence, with certain exceptions where the spouses are aliens (Arts 39, 611, 612 CCiv. P); and (f) fora bonorum, suits on monetary claims may be brought also either at (i) the residence of the defendant if it is of a certain duration; or (ii) the situs of any property of the non-domiciliary defendant even for unrelated claims (Arts 38, 40 CCiv.P), which is akin to in rem and quasi in rem jurisdiction except that, because the judgment is not limited as to amount, it can be classified as potentially ‘exorbitant’. F.

PROROGATION

It should also be mentioned that the parties may choose a specified district court in advance, or in a pending suit. Such choice may be effected by express written agreement or by tacit informal acceptance expressed through failure to object in court at the first opportunity (παρέκταση, parektasi; prorogation, Arts 42–44 CCiv.P). This confers jurisdiction except for non-pecuniary claims and claims relating to out-of-state immovables. No similar freedom of choice exists for the parties with regard to subject-matter competence, which is mandatorily fixed by law. G.

REVIEW OF JURISDICTIONAL ISSUES

Any court having competence is required to take the case: the forum non conveniens doctrine is unknown in Greek law. If the court lacks competence, it may not dismiss the case, but must transfer it to the competent court within the same

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jurisdictional division (Art. 46 CCiv.P). Such transfers are not allowed among different jurisdictional divisions, be they civil, criminal or administrative. They are also not allowed among different states unless Regulation 44/2001 (Brussels I)6 applies, i.e. among the Member States of the European Union.7 A judgment can be attacked directly for lack of competence; null and void, however, is only a judgment that transgresses the lines demarcating the three jurisdictional divisions (see Art. 313 I(b) CCiv.P). IV.

PARTIES AND TYPES OF ACTIONS

A.

CAPACITY AND STANDING TO SUE

According to Article 68 CCiv.P, ‘he who has a direct legal interest may request judicial protection’ (ενάγων, enagon; plaintiff). This provision grants standing to sue (νομιμοποίηση, nomimopoiisi) only to persons whose substantive rights constitute the object of the relief sought in the action. In conformity with traditional Continental patterns, Greek law does not allow third persons having only an indirect or remote interest, or fighting merely pro bono publico, to institute civil proceedings. Therefore, neither the actio popularis nor modem American developments in the field of class and derivative actions have found their way into Greek civil procedure.8 A similar position is taken with regard to the proper party defendant (εναγóμενος, enagomenos): only a person who is liable under substantive law may be made defendant (Art. 216 I(a) CCiv.P). Joinder of parties (ομοδικία, omodikia) relies equally on substantive law considerations. Permissive joinder of plaintiffs or defendants is available to all those sharing the right or duty in dispute or in cases in which joint parties pursue or face claims based on similar causes of action (Art. 74 CCiv.P). The Code (Art. 76) also acknowledges, however, the concept of necessary and indispensable parties: if several persons are required in order to bring or to defend a particular action (e.g., for partition of a thing owned in common), or if no inconsistent judgments should be rendered as among them, then the parties must be joined. An expansion of the subjective confines of litigation is further provided for through the use of the intervention (παρέμβαση, paremvasi; Arts 79–85 CCiv.P) and the impleader (προσεπίκληση, prosepiklisi; Arts 86–90 CCiv.P). So far as capacity is concerned, every natural person and every legal entity may be made a party since they are capable of holding rights (see Ch. 5, 6.

Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12/1–23, 2001. 7. Except Denmark; the latter’s relations with other Member States (and therefore Greece) on this subject are still regulated by the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels Convention; ratified by Law 1814/1988, GG A 249). 8. By way of exception, consumers’ unions may bring in a collective action under Art. 10 IX–XV, XIX of Law 2251/1994.

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Sections II A–B, III B 2). However, capacity to be a party (ικανότητα διαδίκου, ikanotita diadikou) is to be clearly distinguished from the capacity to conduct litigation in one’s own name (ικανότητα δικαστικής παραστάσεως, ikanotita dikastikis parastaseos). The latter is granted only to persons enjoying the capacity to enter into juridical acts (see Ch. 5, Sections II A and V B), i.e. to all persons above the age of 18 who are not under judicial assistance (see Ch. 9, Section VII D). Therefore, a party not capable of conducting litigation in his own name as well as all legal entities must act through their legal representatives. A further and more general requirement is for a party to be represented by an attorney in any court other than a justice of peace. The choice of attorney is free but must be made from among the members of the local bar. An attorney may be appointed either by a document prepared by a notary or through personal appearance in court (Art. 96 CCiv.P); it is revocable at any time (Arts 100–103 CCiv.P). The requirements discussed in this section are called ‘procedural prerequisites’ (διαδικαστικές προϋποθέσεις, diadikastikes proypotheseis) and are scrutinized by the court on its own motion (Art. 73 CCiv.P). If any one of them is lacking, the court will not proceed to the merits of the case, but will dismiss the action as ‘inadmissible’ (απαράδεκτη, aparadekti).9 Such a dismissal does not prevent, however, the defeated plaintiff from remedying the defect and coming back with a new action. B.

TYPES OF ACTIONS

Several criteria are used in order to classify the various types of actions. The classical categories of complaints were developed in Roman law and rely heavily upon substantive law concepts (e.g., actio in rem, actio in personam, actio mixta; further examples along similar lines would be the hereditary action or the family law action). More important, however, is the procedural classification based on the type of relief requested by the plaintiff. In this respect, a tripartite division emerges: actions for performance, actions for declaratory judgment and actions for judicial modification of legal relationships. The action for performance (καταψηφιστική αγωγή, katapsifistiki agogi) is the most ancient and remains today the most usual type of action. It aims at a judgment ordering the defendant to perform as obligated; the performance may be a specific one or consist in the payment of money. Article 69 CCiv.P rather broadly allows even an action for future performance, thus turning an originally repressive remedy into a preventive one. The practical relevance of an action for performance lies in the field of enforcement: it is the only type of action, which, if 9.

In Continental civil procedure, ‘inadmissibility’ of the action, or the appeal, is a technical term not limited to lack of international jurisdiction. The term means that the court may not examine the merits of the case and covers situations like lack of capacity or standing, prematurity, res judicata, or untimely filing of an appeal.

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successful, opens the way for enforcement by execution. By contrast, declaratory judgments are not, strictly speaking, enforceable. They make a binding determination of a legal relationship capable of becoming res judicata. Therefore, an action for declaratory judgment (αναγνωριστική αγωγή, anagnoristiki agogi; Art. 70 CCiv.P) must concern a specific legal relationship, and requires a legal interest on plaintiff’s part especially worthy of protection. There is increasing recourse to such actions, since their litigation is exempted from the fee levied by the state on the trial of an action for performance (about 1 per cent of the amount in litigation). Finally, an action for judicial modification of a legal relationship (διαπλαστική αγωγή, diaplastiki agogi; Art. 71 CCiv.P) is available only in cases provided for by law, for example to obtain a divorce or to set aside a contract on account of fraud, duress or mistake. Greek law does not permit the courts to alter existing legal relationships between the parties without an express statutory authorization; this is granted only in exceptional cases. V.

PROCEDURAL PRINCIPLES

The Code of Civil Procedure devotes a central chapter of its Book I to the so-called ‘fundamental procedural principles’ (Arts 106–116). In so doing, it conforms to the Continental tradition of procedural codifications, with the new French Code of Civil Procedure (1975) being the latest and most spectacular example (Arts 1–24: les principes directeurs du procès). Such principles mainly deal with the allocation of power and initiative as between the court and the parties and with the guidelines for conducting litigation. They are formulated in the Code in highly abstract wording. Yet they are not mere precepts for general inspiration but rules of positive law, requiring and enjoying immediate application.

A.

THE DOMINANT POSITION OF THE PARTIES

Domini litis are the parties. They determine whether, on what subject matter, to what extent, and upon what allegations of fact there will be civil proceedings. The judge remains a neutral, more or less passive and more or less silent, observer of the procedural scene, introducing on his own motion mainly the rules of law applicable to the dispute. Compared to his Anglo-American counterpart, the Greek judge displays less visible power in controlling the courtroom but, so far as evidentiary matters are concerned, he seems to have greater leeway for initiative. The dominant position of the parties with regard to the subject matter and the conduct of civil litigation becomes apparent in three respects: (a) A court may neither award the plaintiff relief not requested nor go beyond the request submitted (Art. 106 CCiv.P). Conversely, the plaintiff may withdraw the complaint and the defendant may acknowledge the claim; this means that, as a rule, the proceedings are terminated to the detriment

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Konstantinos D. Kerameus of the party taking such initiative, without any further inquiry by the court (Arts 294, 296, 298 CCiv.P). (b) The court has no authority to rely on facts neither submitted nor proven by a party (Art. 106 CCiv.P). The court may, of course, order the taking of evidence (Art. 107 CCiv.P), but it is then for the parties to collect and to present to the court the various means of proof. By contrast, the field of the applicable rules of law constitutes the court’s own domain: with regard to domestic law, there is neither need nor possibility of ‘proving’ its contents. Foreign law is also covered by judicial notice (Art. 337 CCiv.P), even on appeal, including the final appeal to Areios Pagos (Arts 559(1), 560(1) CCiv.P). If, however, the court does not know the relevant foreign law, it may order the taking of evidence or rely on any, even unofficial, methods of cognizance (Art. 337 CCiv.P; see Ch. 17, Section I H 5). (c) All consecutive procedural steps are to be taken, as a rule, by the parties, not by the court (Art. 108 CCiv.P). For instance, all hearings of the case are fixed on a party’s motion; judicial documents, including judgments, are served on party initiative and not on motion of the court (Art. 123 CCiv.P); even moving the appellate proceedings forward after an appeal has been filed always depends on party diligence (Art. 498 CCiv.P).

B.

CONCENTRATION ON THE FIRST HEARING

In its endeavor to expedite proceedings, the law has required all factual allegations of the parties to be submitted to the court at the first hearing of the case; only in exceptional instances are the parties permitted to plead additional facts at a later stage (σύστημα συγκεντρώσεως, systima syngentroseos; Art. 269 CCiv.P). The scope of the former rule as such has been, however, strongly reduced by virtue of Article 12 of Law 2915/2001. Indeed, under this enactment, only one comprehensive hearing is provided for all cases, regardless of whether they fall under the subject-matter competence of the justices of peace, or the one-member, or three-member district courts. Under the deeply modified Article 270 CCiv.P, all courts of original jurisdiction have to render the final first-instance judgment after the first, and only, hearing of the case, which is oral and comprehensive. Accordingly, concentration on the first hearing remains only relevant with regard to the methods of appeal: as a rule, they are not allowed to deal with factual allegations or means of proof not already submitted to the court of original jurisdiction (Arts 527, 562 II CCiv.P). C.

ORAL AND WRITTEN PROCEEDINGS

During the 1960s and 1970s, the drafters of the code strongly favored oral proceedings. Nevertheless, both practice and subsequent amendments relied heavily on the exchange of written pleadings, thus making a full oral hearing an optional

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and rather rare phenomenon in civil litigation. By contrast, Law 1478/1984 has made oral proceedings mandatory before the justices of peace and in the onemember district courts (Arts 115, 270 [in its previous wording] CCiv.P), and Article 270 CCiv.P (as widely amended through Law 2915/2001) expanded the mandatory oral hearing to all courts of first instance. D.

GOOD FAITH AND MORALITY

In an optimistic spirit of innovation, Article 116 CCiv.P introduces a general duty to tell the truth in civil proceedings, and requires the parties, their legal representatives and their attorneys to conduct litigation according to good faith and morality. Little has changed, however, as an immediate result of this provision, since the sanctions are restricted to moderate fines (Arts 205(2), 185(1) CCiv.P) seldom imposed and thus regarded as a negligible threat. VI.

ORDINARY PROCEEDINGS IN FIRST INSTANCE

A.

COMMENCEMENT OF THE ACTION

Regardless of the type of action, ordinary proceedings in the courts of first instance follow the same pattern. A civil action (αγωγή, agogi) is commenced by filing a complaint with the clerk who appoints a day and time for the hearing of the case; he then enters the action in the docket (πινάκιο, pinakio; Arts 215, 226 CCiv.P). The defendant will then, on plaintiff’s initiative, be served usually at his home or at his place of business with a copy of the complaint containing also the day and time fixed. Service must be made at least 60 days before the hearing, or 90 days if the defendant resides abroad or his domicile is unknown (Art. 228 CCiv. P, as amended through Art. 6 II of Law 3043/2002). After service is completed, the action is considered as having been brought (Art. 215 I CCiv.P) and the litigation as pending. This has both procedural and substantive effects: on the procedural level, no future extension or modification of plaintiff’s claim is permitted (Arts 223, 224 CCiv.P), and the resulting lis pendens (εκκρεμοδικία, ekkremodikia) prevents any other court from hearing the same claim (Art. 222 CCiv.P); on the latter level, as from the service on the defendant, among other things, the running of the statute of limitations is interrupted – which is considered, according to Continental tradition, substantive – and interest accrues on all monetary claims (Art. 221 CCiv. P; Arts 261, 346 CC). B.

CONTENTS OF THE COMPLAINT

The complaint is drawn up and signed by plaintiff’s counsel. It identifies the court in which the action is being brought, states plaintiff’s and defendant’s names and

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domiciles and contains the grounds establishing the cause of the action as well as an unambiguous specification of the relief requested (Art. 216 I CCiv.P). Failure to allege sufficient facts to support the claim will lead to the dismissal of the complaint even on the court’s own motion. By contrast, the legal aspects need not be articulated at this initial stage of the litigation or even later (ius novit curia; see above, Section V A (b)) – the only exception being, of course, the proceedings before Areios Pagos, which are restricted to legal issues. However, since both the complaint and the subsequent pleadings are prepared by lawyers, they, not surprisingly, often include rather extensive legal argument. Joinder of separate claims (σώρευση αγωγών, soreusi agogon) between the same parties is allowed even if they arise out of entirely unrelated facts, provided they (a) do not contradict each other, and (b) fall within the competence of the court (Art. 218 CCiv.P). Subsidiary claims may likewise be included in the same or in another complaint should the main claim be dismissed (επικουρική βάση της αγωγής, epikouriki vasi tis agogis; Art 219 CCiv.P). There exists, however, neither a compulsory joinder nor any general prohibition against splitting a single claim or cause of action. C.

PLEADINGS

Formal preparation for litigation is not necessary for either plaintiff or defendant. As a general matter, the plaintiff may bring an action as the first step in the proceedings against the prospective defendant. The defendant is not required to answer the complaint immediately. Rather, both parties must submit their respective pleadings at the latest 20 days before the hearing. Counter-memorials have to be annexed to the main pleadings 15 days before the hearing.10 The file of the case is then closed and transmitted to the reporting judge in order for him to prepare for the hearing of the case. Such written pleadings develop the respective parties’ factual and legal positions. Written pleadings other than the complaint are never required to be served or even sent to the other party; they are only filed with the court’s clerk who takes care of distributing them to the other parties’ lawyers (Arts 237, 240 CCiv.P, as repeatedly amended). The hearing of the case is indeed the most important phase of the entire proceedings. Both parties articulate their statements of fact and produce all evidence required and available. Proceedings before justices of peace or one-member district courts have already been traditionally oral. Now orality has been expanded before three-member district courts as well. After the hearing that, as a rule, is only one, the judgment is handed down; only in exceptional cases may the court

10. With regard to cases before the one-member district court, these periods of time needed to be activated by a still outstanding presidential decree (Art. 7 III of Law 2915/2001).

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order further evidence to be taken (Arts 237, 270 CCiv.P, as amended by Arts 7, 12 of Law 2915/2001). D.

DEFENSES AND COUNTERCLAIMS

In formulating his pleadings, the defendant is also not subject to strict pleading rules. Two types of objections are in order at that time: (a) Exceptions (ενστάσεις, enstaseis) either prevent the court from reaching a decision on the merits, for example a plea of lack of competence or of lack of standing, or plead ulterior facts, for example a plea by way of confession and avoidance or of set-off. The former type must also be considered by the judge ex officio. (b) Defenses related strictly to the grounds of the action, which means to deny the facts as alleged by plaintiff or to put them in another context (άρνηση της βάσεως της αγωγής, arnisi tis vaseos tis agogis; Art. 261 CCiv.P). The defendant may interpose a counterclaim 30 days before the hearing at the latest (ανταγωγή, antagogi; Arts 34, 268 CCiv.P). Counterclaims follow their own procedural course regardless of the outcome of the action. It is thus possible for the action to be dismissed, yet an affirmative judgment may be rendered on the counterclaim. E.

DEFAULT

A judgment may also be obtained by default, either on plaintiff’s or on defendant’s side (ερημοδικία, erimodikia). Default may result when a party is not properly represented at a hearing; representation normally requires a duly appointed lawyer and the timely filing of pleadings. Any party’s default requires the court to ascertain whether proper service of process was made on the defaulting party; if not, the case may not proceed and a new service becomes necessary (Arts 271 I, II CCiv. P). If service was proper on the defaulting party, regardless of whether that party is the plaintiff or the defendant, all parties are presumed to be present (Art. 270 I 5). Accordingly, the court may draw whatever inferences from a party’s absence. However, this absence as such does not produce any legal effect on the outcome of the case (Art. 270 I 4, 5 CCiv.P). F.

ATTEMPT AT CONCILIATION

At any stage of the case, the court is expected to promote a settlement of the dispute (συμβιβασμός, symvivasmos; Art. 233 II CCiv.P). Furthermore, Articles

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209–214 CCiv.P provide for a permissive conciliation by the justice of peace before a complaint is filed with the clerk of any civil court. Such an attempt at conciliation becomes mandatory in cases falling within the subject-matter competence of the justice of peace (Art. 208 CCiv.P) and in labor cases (Art. 667 CCiv.P). Nevertheless, the practical relevance of conciliation is minimal. Skipping a mandatory attempt at conciliation does not trigger any sanctions. With regard to optional conciliation, the parties are usually unwilling to lose face by exposing themselves to a process that may not succeed. The intensely belligerent image of Greek advocacy also contributes to a rather unfavorable attitude towards conciliation. This qualification has not much changed even after a mandatory attempt at settlement was introduced by Article 214A CCiv.P. The ‘mandatory’ character qualifies the attempt rather than the result. It is reported that the per centage of cases effectively settled is still minimal. G.

COURT COSTS AND LEGAL AID

Another factor accounting for the minor role of conciliation is the comparatively low level of court costs, including attorney fees. While the Code on Attorneys provides for the minimum level of fees depending on the amount in civil litigation and the type of procedure involved, in practice an attorney’s remuneration is often fixed by an agreement between him and his client. Contingent fee arrangements are allowed, and indeed usual in some areas (e.g., labor or tort cases or actions relating to rights in immovables), up to 20 per cent of the amount eventually awarded. Court costs (δικαστική δαπάνη, dikastiki dapani) are borne in advance by each party with respect to his own expenses. Ex post, they are allocated by the judgment according to the so-called ‘defeat principle’ (Art. 176 CCiv.P): after the suit is terminated, the loser pays the other party’s court costs including moderate lawyer fees (Art. 189 CCiv.P). This principle, however, is mitigated by an important exception: the court may and often actually does depart from the allor-nothing cost charge and allow no recovery of expenses whatsoever, if it deems that the interpretation of the relevant rule was particularly difficult (Art. 179 CCiv. P, as amended by Art. 2 II of Law 2915/2001). This consequence may also follow in cases of partial victory and partial defeat by both parties (Art. 178 CCiv. P). Recently, there seems to be a tendency in the courts to adhere more strongly to the principle of ‘loser pays all’. A preliminary encouraging opinion of counsel to the party who eventually lost would in most instances not suffice to relieve him from paying the victorious party’s expenses. However, they are usually recovered at less than their actual amount, in particular they seldom come up to the total fees paid by the victorious party to his lawyer. It is worth emphasizing that malpractice suits against lawyers, while theoretically available, are virtually non-existent in all respects.

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Legal aid (ευεργέτημα πενίας, evergetima penias) is provided for by Articles 194–204 CCiv.P. Its availability depends, however, on proven need. Such a strict limitation has so far prevented an extensive recourse to legal aid. VII.

EVIDENCE

A.

ORDERING EVIDENCE

Matters of evidence (απόδειξη, apodeixi) occupy a central place in Greek civil proceedings and procedural reform trends as well. Indeed, the bulk of proposals put, time and again, on the table towards a more efficient and rapid civil procedure turned around the question of whether, or not to, first delineate the subject matter of evidence and only thereafter let the administration of evidence take place. Formerly, the taking of evidence required an extensive and fully reasoned opinion of the court. Law 1478/1984, amending Article 341 CCiv.P, replaced this full statement of reasons in a formal decision with a simple and short judicial act, containing only the subject-matter of evidence, the allocation of burden and the allowed means of proof, as well as the place and time of evidence-taking. In addition, before one-member courts (justices of peace and one-member district courts alike), parties have been required by the law to produce their means of proof at the first hearing, since the court is expected to render judgment, as a rule, at once without further taking of evidence; since 2002, the same method applies to all first-instance courts, in particular including the three-member district court as well (Art. 270 CCiv.P, as amended first by Art. 11 of Law 1478/1984 and then by Art. 12 of Law 2915/2001; see above, Sections V B, VI C in f.). In particular, expert reports and viewing of the premises may be ordered orally by the court. In any event, early proper discovery and other pre-trial devices are not known to Greek law, since evidence is confined solely within the time limits of a formal lawsuit except in cases of imminent danger, for example destruction of a means of proof (συντηρητική απόδειξη, syntiritiki apodeixi; Arts 348–351 CCiv.P). B.

SUBJECT-MATTER OF PROOF

Only those facts contested by one party and relevant to the outcome of the litigation make up the subject-matter of proof (Art. 335 CCiv.P). The court takes judicial notice (Art. 336 CCiv.P) of the general teachings of human experience (e.g., notions of psychology, geography, history, even generally accessible concepts of modern technology) as well as of facts practically known to everyone (e.g., the nuclear accident at Chernobyl). The court is further allowed to infer from proven facts conclusions as to other facts.

358 C.

Konstantinos D. Kerameus BURDEN OF PROOF

Matters of proof are extensively regulated in the Code of Civil Procedure in some 130 Articles (335–465). Nevertheless, only one of them establishes a general statutory rule allocating the burden of proof (βάρος αποδείξεως, varos apodeixeos; Art. 338 CCiv.P). According to this rule, each party has to prove the facts that are necessarily required to support his claim or counterclaim. Further elaboration of this abstract principle is left to the substantive rules dealing with the specific legal relationships and contained mainly in the Civil Code. Thus, in a case involving a contract, plaintiff bears the burden of proving both the existence of the contract and its breach. However, lack of capacity, fraud or the plea of the statute of limitations are affirmative defenses which must be proven by the defendant (see Arts 277, 278 CC). The rules refer to the burden of proof as the onus of producing evidence. However, to the party bearing this ‘subjective’ burden of proof is also allocated the burden of proof in an ‘objective’ sense, that is the risk of non-persuasion,11 which will in most cases ultimately mean losing the suit. Persuasion (πεποίθηση, pepoithisi) implies the full conviction of the court, i.e. requires clear and convincing proof; only in cases specifically provided in the law, the ‘objective’ burden of proof is satisfied by a showing of probability (πιθανολόγηση, pithanologisi; Art. 347 CCiv.P). D.

MEANS OF PROOF

There are nowadays seven means of proof under the Code (Art. 339): confession (ομολογία, omologia), direct proof, especially viewing the premises (αυτοψία, autopsia), expert reports (πραγματογνωμοσύνη, pragmatognomosyni), documentary evidence (έγγραφα, engrafa), examination of parties (εξέταση των διαδίκων, exetasi ton diadikon), testimony (μάρτυρες, martyres), and presumptions (τεκμήρια, tekmiria). Party-oath was a relic of medieval procedure, conferring binding force to a party’s sworn affirmation. It was imposed by the court only if there was no other sufficient evidence; in actuality, it was used infrequently and in 2002 done away altogether. It has been replaced in part by the examination of parties, sworn or unsworn, which is also a subsidiary means of proof (Art. 415 I CCiv.P) and has no binding force. In recent years, the use of expert reports has risen greatly in importance and frequency, particularly in connection with blood tests, the explanation of air-photographs, the authenticity of tape recordings, or the account of other technological events. Courts are encouraged to take judicial notice of technical elements relevant to the litigation, for example of the value of an estate or the proper functioning of a machine. Only if the required level of knowledge is qualified as 11. On this distinction, see, e.g., F. James and G. Hazard, Civil Procedure (3rd edn, Boston, Toronto, 1985) 313–321.

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‘highly specialized’ and expertise is requested by a party, must the court order it (Art. 368 II CCiv.P). In practice, however, expert evidence is often ordered even where the court was not bound to resort to it. In all cases of expert evidence, the parties are entitled to appoint their own ‘technical counsel’ (τεχνικοί σύμβουλοι, technikoi symvouloi; Arts 391, 392 CCiv.P) in order to highlight their viewpoints on the technical aspects and to assist the court-appointed experts. The latter may be public officers or private individuals; no formal consequences are derived from this distinction. Testimony and documentary evidence remain the most common methods of proof. Although there are no exclusionary rules of evidence in the American sense, the Code does deal in certain exceptional situations with the non-admissibility of particular kinds of proof. Still under French influence, Greek law is suspicious of the credibility of witnesses. It requires a contract or other juridical act to be in writing and admits testimony only as an exception which is, however, rather broad. The exception encompasses all cases in which production of written proof is literally or practically impossible. Also within the exception are most commercial transactions as well as all juridical acts, even of non-commercial nature, the value of which does not exceed the sum of EUR 5,900 (Arts 393, 394 CCiv.P). E.

DOCUMENTARY EVIDENCE

Documentary evidence consists of notarial and other authentic instruments (δημόσια έγγραφα, dimosia engrafa) or of instruments drawn privately (ιδιωτικά έγγραφα, idiotika engrafa). The former bring about conclusive proof: the court must deem established as against the world the facts recorded in an authentic instrument witnessed by a notary or other public official, provided that he has acted within the scope of his authority (Arts 438, 440, 441 CCiv.P). The latter have a more limited probative effect in two respects. First, the facts recounted are considered as established, but only as against the person(s) who signed the private instrument; however, any form of counterproof can overcome this effect (Arts 446–448 CCiv.P). Furthermore, the authenticity of a private instrument, if contested, has to be proven by the party producing the instrument (Art. 445 CCiv. P). All documents may be challenged for forgery (πλαστογραφία, plastografia; Arts 460–465 CCiv.P). F.

ADMINISTRATION OF EVIDENCE

As a rule, evidentiary proceedings take place before the full court (Art. 270 CCiv. P). No reference of the administration of evidence to other judges or courts is provided for. The court takes into consideration all means of proof which comply with the law. In addition, the court may also consider as well, and freely evaluates, means of proof which do not comply with the requirements of law. The court

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has to examine at least one witness from each side. In addition, three witnesses from each side may be examined before a notary, provided that the adverse party has been notified two working days in advance. For purposes of rebuttal, an equal number of witnesses may also be examined by the adverse party (Art. 270 CCiv.P, as replaced by Art. 12 of Law 2915/2001). In any case, it lies within the province of the court to order the supplementary examination of such evidence, especially a deposition that may seem exceptionally important (Arts 245, 254, 411 CCiv. P). Documentary evidence and expert reports are kept in the file of the case and may be examined by the whole panel. A full transcript of testimony taken before the court is kept, more or less exhaustively, and delivered to the parties (Art. 270 VI 2). G.

EVALUATION OF EVIDENCE

In principle, there are no mechanical rules of proof, prescribing in a general way the probative weight to be accorded to the various types of evidence. Such legal weight, irrespective of the particular circumstances, is provided for by the law only in exceptional cases, as with regard to notarial or other authentic instruments (see above, under E), or confessions (Art. 352 CCiv.P). Otherwise, the judges must decide controversies on the basis of their inner conviction and are free to weigh the opposed means of proof in any way they deem proper (Art. 340.1 CCiv. P). This rule applies even to highly technological explanations contained in some expert reports (Art. 387 CCiv.P). In any event, the judges are required to articulate in their opinion their conclusions as to the facts (Art. 340.2 CCiv.P). VIII. A.

APPEALS AND SCOPE OF REVIEW FUNCTION AND DISTINCTIONS OF THE METHODS APPEAL

OF

Like most Continental legal systems, Greek law does not conceive of appeals as coming within the discretion of the judge, either the lower-court judge who rendered the judgment to be attacked or the superior judge called upon to review it. All methods of appeal (ένδικα μέσα, endika mesa) are as of right: they are provided specifically by the law, and there is no other way of reviewing a judgment. Appeals are not necessarily addressed to a higher court: although not often used, two kinds of attack (reopening of default, and of contested judgments) are directed to the same court that rendered the decision under challenge. Following again French patterns, Greek civil procedure distinguishes between ordinary and extraordinary methods of attack. Reopening a default decision, as well as the regular appeal leading to a review on the law and on the facts, make up the former group. To the latter group belong the two remaining methods

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of attack: the reopening of contested judgments, and cassation, the request to Areios Pagos for a review on the law only. The functional consequences of this distinction lie with the effect of res judicata (δεδικασμένο, dedikasmeno) and the enforceability (εκτελεστότητα, ektelestotita) of judgments. Generally, both come into play only after the ordinary methods of attack have been exhausted (Arts 321, 904 II(a) CCiv.P), that is either rejected or left unused within the time limitation provided. By contrast, extraordinary methods of attack neither suspend the res judicata effect nor stay execution of the judgment under challenge. Whereas, however, res judicata cannot be precipitated or deferred by order of the court in its discretion, the procedural maturity of the judgment for enforcement purposes may vary in both directions: the court may, or sometimes must, allow the provisional enforcement of a judgment (προσωρινή εκτέλεση, prosorini ektelesi), with the one or the other ordinary method of attack still pending (Arts 907–914 CCiv.P); it may also suspend the enforcement of a judgment already having res judicata effect until the exhaustion of the extraordinary methods of review (Arts 546 II, 565 II CCiv.P). From a technical point of view, all methods of attack are initiated by filing a written petition with the clerk of the court that rendered the judgment (Arts 495– 497 CCiv.P; for the next steps see above, Section V A (c) in f.). From a general point of view, appeals are not considered to be protected either through the constitutional guaranty of the right to sue (Art. 20 I Const.) or through Article 6 ECHR. Therefore, Parliament is in principle free to reduce the availability of appeal in some matters; it has done so, for example, with regard to small claims (up to EUR 1,500; Arts 466, 512 CCiv.P). B.

REOPENING OF DEFAULT

The reopening of default (ανακοπή ερημοδικίας, anakopi erimodikias) used to be a twofold method of attack. It means, first, that a party who has not been duly summoned to a hearing of the case may demand reopening of the decision (Art. 501 CCiv.P). In this sense, reopening is premised on the right to be heard in court (Art. 20 I Const.) and does not produce a suspensive effect. However, it is rarely successful since it is unlikely that the court, when issuing the default judgment, did not consider the question of proper service on the defaulting party (see above, Section VI E). The second meaning of the reopening of default is more technical and has been peculiar to the historical development of Greek civil procedure. This second meaning used to cover the cases in which the default judgment was handed down in the first hearing of the case, in first or second instance (intermediate appellate level). In such circumstances, the defaulting party could demand, and the court had to reopen the default, regardless of whether the party had been duly served (Art. 501 I CCiv.P, as it stood before Art. 9 I of Law 2145/1993: ‘unjustifie1d’ reopening of default). This latter attack was provided with suspensive effect and

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often served only defendant’s dilatory tactics. Such a wide conception of default has been now eliminated. As far as time is concerned, a reopening may be asked for not later than 15 days from the date of service, or pretended service, of the default judgment or 60 days if the defaulting party resides abroad (Art. 503 CCiv.P). C.

REGULAR APPEAL

The most important and frequent attack on judgments is provided through the regular appeal (έφεση, efesi). The term has a technical meaning, denoting the attack on first instance judgments, addressed to a (intermediate) court of appeals authorized to review the judgment on the law and on the facts. In this sense, appeals may generally be taken from judgments rendered by any trial court (Arts 511, 513 CCiv.P). As a rule, only final judgments are appealable; non-final decisions, for example interlocutory or preparatory orders, can only be attacked jointly with the final judgment following them and terminating the entire case before the trial court. Intermediate petitions for reconsideration by the rendering court are quite exceptional (Art. 513 II CCiv.P). Time for appeal is 30 days from the date of service of the judgment attacked, or 60 days if appellant resides abroad (Art. 518 CCiv.P). Grounds for appeal may refer to pure questions of fact, including the evaluation of evidence, to questions of (substantive or procedural) law, or to alleged procedural mistakes of the lower court. Consequently, an intermediate appellate court has potentially the same powers as the trial court that issued the judgment appealed from. It cannot, however, grant relief beyond the issues to which appellant has restricted his appeal (Art. 522 CCiv.P); new claims may not be presented on appeal (Art. 525 CCiv.P). Nevertheless, a cross-appeal (αντέφεση, antefesi) is allowed to the party who has not appealed, but only within the challenged portions of the lowercourt judgment or those necessarily related to them (Art. 523 CCiv.P). The court of appeals conducts a trial de novo on all matters before it: a regular appeal on the record alone is unknown in Greek civil procedure. Upon reversal, the court of appeals usually retains the case. However, if the appeal was sustained because of lack of jurisdiction of the court below, the case is referred to the court having jurisdiction. In the exceptional case that the latter court belongs to the jurisdictional ambit of the same appellate court, that court may either remand or decide the case on the merits (Art. 535 CCiv.P, as paragraph I was replaced by Art. 16 VII of Law 2915/2001). D.

REOPENING OF CONTESTED JUDGMENTS

Reopening of contested judgments (αναψηλάφηση, anapsilafisi) has been modeled in Greece on the French requête civile and the German Wiederaufnahme des

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Verfahrens. This avenue is open to a party aggrieved by a judgment having res judicata effects, regardless of the availability of a cassation to Areios Pagos, yet on very narrow grounds. The grounds may be either purely procedural or have simultaneously some substantive connection (see Art. 544 CCiv.P). To the former category belong the existence of forged or of inconsistent judgments, a knowingly improper method of service of process as well as a party’s improper representation. Along with these procedural improprieties, contested judgments may also be reopened in cases of perjury or other misconduct, provided that a criminal sanction has been already inflicted thereon through an unappealable decision; also if existing, yet concealed, documentary evidence has been discovered afterwards; finally in cases in which a judicial decision supporting the judgment under attack has been vacated. Under all these quasi-substantive grounds, the defect subsequently disclosed must have materially affected the outcome of the concluded proceedings. E.

CASSATION

Compared to the regular appeal (see above, under C), proceedings on cassation (αναίρεση, anairesi) in Areios Pagos take on a much narrower scope. Here, the grounds for review are, although numerous, quite limited, and may involve violation of either a rule of substantive law or of some specified rule of procedure (Arts 559, 560 CCiv.P). Cassation thus proceeds on the record and is not allowed in principle to touch upon findings of fact (Art. 561 I CCiv.P). It may nevertheless be founded on a distortion of clear and precise documentary evidence or on a lack of legal basis (manque de base légale), i.e. whenever the findings of fact contained in the lower-court decision are so inconsistent or insufficient that Areios Pagos cannot determine whether the law has been correctly applied. Apart from these marginal grounds for cassation, a violation of rules of substantive law may result from either erroneous interpretation or mistaken application of a legal norm. In the latter alternative, Areios Pagos reviews also the characterization attached to facts, for instance whether or not they constitute negligence or whether they comply with abstract legal notions, such as good faith or important reason, incorporated in the applicable rules. Here, however, emerge mixed questions of law and fact, which cause difficulties in delineating the exact scope of review and spawn a somewhat inconsistent series of cases. Upon reversal, the case must be remanded to a lower court for re-examination of the disputed issue (Art. 580 CCiv.P, as amended through Arts 5 XV of Law 1738/1987, and 31, 32 of Law 2172/1993). Even though precedents are not a formal source of law (see above, Section II D in f., and Ch. 2, Section III), Areios Pagos opinions have a considerable impact upon the decisions of all other courts in the country and they are, as a rule, followed by the Areios Pagos itself in subsequent cases.

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IX.

EFFECTS OF JUDGMENTS

A.

DRAFTING AND CONTENTS OF JUDGMENTS

In order to prepare the judgment (απóφαση, apofasi) in any judicial panel, one of its members is appointed by the president or the presiding judge, immediately after the hearing, to be the drafter (juge rapporteur = εισηγητής, eisigitis). Only in the cassation panels of Areios Pagos is the drafter appointed at the time of fixing a date for the hearing. He must file his draft report with the court at least eight days before the hearing (Art. 571 CCiv.P, as considerably expanded through Arts 17 III of Law 2915/2001 and 10 of Law 3043/2002) and will read it in public at the hearing (Art 574.1 CCiv.P). In all other judicial panels, the drafter will prepare and develop orally the terms of the judgment only in a closed conference to be held among the members of the panel. The judges speak and vote in the reverse order of seniority (Art. 301 CCiv.P), except for the drafter who presents his point of view first. Dissenting opinions are allowed in all Greek courts according to Article 93 III 2 Const. (see also Arts 35–38 of Law 184/1975); they appear, however, rather rarely and reveal the dissenters’ names. Judgments are pronounced at a public audience (Art. 93 III 1 Const.; Art. 304 II CCiv.P) and many are thereafter reported, with varying degrees of frequency and comprehensiveness, in legal periodicals. The text of a judgment opens by mentioning the composition of the court, including the name of the judge who drafted the text; identifies the parties and their representatives; indicates the subject-matter of the dispute and the course followed in the proceedings; and then goes on stating the reasons adopted in the case by the court. The operative part of the judgment (διατακτικό, diataktiko) comes at the end (Art. 305 CCiv.P). The statement of reasons in Greek judgments, compared to English, American, or German ones, is rather short, tending more to French style, especially in Areios Pagos. With the exception of the latter, there are usually some references to scholarly works and even more to cases. B.

BINDING EFFECTS OF JUDGMENTS

A civil judgment is not automatically binding. In the first place, it may be null and void if it was beyond the jurisdiction of the civil courts, or against a non-existing party, or not publicly pronounced (Art. 313 CCiv.P). Apart from these truly rare cases, a non-final judgment may always be modified or revoked by the court that rendered it at a later hearing of the same case (Art. 309 CCiv.P). However, the scope of application of this rule has been reduced since all trial courts are expected to hand down their final judgment after the first and only hearing of the case, which practically leaves no room for non-final judgments (see above, Sections V B, VI C, VII A). But even a final judgment, binding though it is upon the court that rendered it, is not yet genuinely binding upon the parties. Res judicata accrues to

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a final judgment only after it is no longer subject to an ordinary method of attack, i.e. reopening of default or regular appeal (see above, Section VIII A). Since no distinction between legal and equitable relief is recognized, all judgments have equal res judicata effect. According to traditional Greek doctrine, the res judicata effect operates within limits that are objective (preclusion on the claim adjudicated; below, under C), subjective (preclusion with respect to non-parties; below under D), or depend on time (mutability of res judicata because of changed circumstances; below under E). C.

CLAIM AND ISSUE PRECLUSION

The res judicata effect between the same parties produces both a merger or bar with respect to the cause of action involved and a preclusion of issues determined in the first suit. Both require a judgment on the merits. By contrast, a judgment dismissing the action on procedural prerequisites becomes res judicata only with regard to the procedural question decided on direct estoppel grounds (Art. 322 I CCiv.P). Claim preclusion is restricted to the same cause of action, both in factual and legal terms (Art. 324 CCiv.P). Therefore, according to the prevailing view in the cases if plaintiff, after having lost the first suit on the merits, comes back with a new complaint based on other allegations of fact or on a legal theory pertaining to substantive rules, which were not considered in the first suit, no plea of res judicata can be entertained. While Greek law knows no rigid forms of action, still, the legal foundation of a claim helps in delineating and identifying it. Issue preclusion on collateral estoppel principles is specifically provided for in Article 331 CCiv.P and distinguishes Greek law from most other Continental systems. Under this rule, issues determined in the first suit are covered by res judicata insofar as (a) they fell within the subject-matter competence of the trial court, and (b) their determination was necessary for the outcome of the litigation. The latter requirement particularly causes recurrent problems and induces the second court to define the scope of res judicata in a sometimes unpredictable, case-by-case approach. D.

PRECLUSION WITH RESPECT TO NON-PARTIES

So far as the subjective limits of res judicata are concerned, Greek law adheres to the principle that only parties and their heirs or other successors are bound thereby (Art. 325 CCiv.P). To a certain extent, however, substantive relationships lead to a broader conclusive effect. Thus, judgments concerning property are equally binding on non-parties holding the thing in dispute in their possession or detention (Art. 325.3 CCiv.P). Judgments in matters of succession, where the administrator of a vacant succession, the liquidator of an estate, or the executor of a will is a party, are also conclusive upon the heirs even if they were not themselves parties

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to the suit (Art. 327 CCiv.P; see also Art. 326 CCiv.P). Judgments against a legal person also become res judicata with respect to those members who are potentially liable (see Art. 329 CCiv.P). The mutuality rule is prevailing, with a slight statutory exception concerning the relationship between the principal debtor and the guarantor (Art. 328 CCiv.P), and significantly limits the subjective extent of preclusion. E.

TIME LIMITS OF RES JUDICATA

Judgments are often based upon judicial forecast of future developments, for example with regard to lost profits; if reality turns out to be different from predictions, res judicata remains nevertheless undisturbed. Not so, however, in cases of periodic performances, for instance future maintenance claims. Here a substantial change of circumstances, including a significant increase of the price index, enables the court to modify the previous judgment for the future (Art. 334 CCiv.P), in a manner resembling the granting of equitable relief. X.

SPECIAL PROCEEDINGS AND PROVISIONAL REMEDIES

A.

FUNCTION OF SPECIAL PROCEEDINGS

Along with ordinary civil proceedings, there have always been in modern Greece special proceedings (ειδικές διαδικασίες, eidikes diadikasies) statutorily provided for, which are subject to simpler and speedier procedures, accompanied by wider powers of the court. These grew step by step mainly in the first half of the 20th century and they were integrated into the system of civil procedure in order to counterbalance the exaggerated formalities and considerable delays under the old Code of Civil Procedure of 1834. The new Code tried to reduce both the necessity and scope of special proceedings by concentrating on ordinary proceedings and improving their efficiency. However, in the almost 40 years during which the new Code has been in force, the reform of ordinary proceedings has lost a good part of its impact. Accordingly, the legislature expanded the sphere of application of special proceedings by increasingly assigning to them additional kinds of disputes. Laws 1478/1984 and 2915/2001 attempted to revitalize ordinary proceedings. They simplified them, as far as all trial courts, one-member and three-member alike, are concerned, by essentially imposing the pattern of the most typical of special proceedings: the procedure in labor cases. In this fashion, traditional ordinary proceedings are now applicable only on appeal from trial court judgments, while in all other cases proceedings may still be technically ‘ordinary’, yet they are actually modeled upon typical patterns of special proceedings.

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GROUPS OF SPECIAL PROCEEDINGS

Special proceedings are now provided for with respect to the following groups of cases: matrimonial matters such as divorce or annulment of marriage (Arts 592–613 CCiv.P); relationship between parents and children (Arts 614–622 CCiv.P); orders of payment on the basis of documentary evidence (Arts 623–634 CCiv.P); disputes concerning negotiable instruments (Arts 635–644 CCiv.P); disputes between landlords and tenants (Arts 647–662H CCiv.P); labor cases (Arts 663–676 CCiv.P); disputes related to the performance of independent services (Arts 677–681 CCiv. P); car accidents (Art. 681A CCiv.P); and maintenance and custody cases (Arts 681B–681D CCiv.P, which are also partly applicable on litigation related to press, broadcast, and TV communications). Along with these specified special proceedings, particular rules (ειδικές διατάξεις, eidikes diataxeis) apply to the collection of small claims (Arts 466–472 CCiv.P; see above, Section VIII A in f.), to the action seeking an accounting (Arts 473–477 CCiv.P), and to the action for partition (Arts 478–494 CCiv.P, as amended through Articles 10–21 of Law 1562/1985). Here, both the low degree of deviation from ordinary proceedings and the technical rather than substantive delimitation of the disputes in question prevented the legislator from elevating the particular rules to the standing of actual special proceedings. C.

COMMON PROCEDURAL FEATURES

It is difficult to identify common procedural features connecting all special proceedings. With regard to matrimonial cases and parent-child disputes, one could stress the non-availability of the party-oath (which has been now under Law 2915/2001 generally eliminated; see above, Section VII D) and the statutory demotion of confession to the position of a non-conclusive method of proof (Art. 600 CCiv.P); the public prosecutor’s potential participation as a party (Art. 607 CCiv.P); a wider demarcation of international jurisdiction (see Ch. 17, Section II), depending as well on a party’s Greek nationality (Arts 612, 622 CCiv.P; see also Art. 611 CCiv.P); and a broader res judicata effect operating erga omnes (Arts 613, 618 CCiv.P). So far as the other types of special proceedings are concerned, one has to keep in mind that labor disputes should be regarded as their prototype as well as their most important specimen in reality. In these proceedings, parties are not necessarily represented by lawyers and they may also assume their defense themselves (Art. 665 CCiv.P). Defaulting parties are by statutory fiction considered as silently present, so that the court must examine the merits of the case, oblivious to the default (Art. 672 CCiv.P); accordingly, no reopening of defaults is allowed without cause (Art. 673 I CCiv.P; see above, Section VIII B); however, all these consequences have been now by virtue of Law 2915/2001 generalized, and do not make up an exception any longer. Standing to sue is granted not only to

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immediately interested parties but also to trade unions, professional chambers, or other associations (Art. 669 CCiv.P). Finally, admissibility of evidence in a substantially broader sense is acknowledged, including as well ‘means of proof not complying with the terms of law’ (Art. 671 I CCiv.P). Thus, even unsigned private instruments or depositions of biased witnesses are taken into account. D.

PROVISIONAL REMEDIES

In practical terms, provisional remedies (ασφαλιστικά μέτρα, asfalistika metra; Arts 682–738 CCiv.P) are even more important than special proceedings. As a rule, they are administered by the one-member district court (Art. 683 I CCiv.P), with a decision usually being rendered within a couple of weeks after the hearing. Their scope is extremely broad, including, but not entirely limited to, the preservation of the status quo ante. They provide for the possibility of provisional relief on each and every claim under the condition of an urgent need or in order to avoid an imminent danger (Art. 682 I CCiv.P). They may be used, indeed, in the context of all kinds of substantive rights or property matters as well as contract or tort cases. Thus, rather promptly, the victim of a traffic accident may obtain an order against the tortfeasor for part of the damage (Art. 728 I(e) CCiv. P), or, to secure the future enforcement of an eventually affirmative judgment, an attachment of the debtor’s property may be authorized (Arts 707–724 CCiv.P). Real property litigation between neighbors may equally support a grant of relief consisting in the provisional preservation of the situation (Arts 731, 733, 734 CCiv. P). Provisional remedies may even be granted on an application ex parte (Art 687 I CCiv.P) and allow the court to issue immediately a provisional order upon the filing of the request (Art. 691 II CCiv.P). They are generally available as soon as two requirements are met: (a) an urgent case and (b) the existence of an underlying substantive right needing provisional protection. Both requirements need only be shown as probable. The aforementioned remedies are termed provisional under two meanings of the term. First, their granting may be combined with an order specifying a time limit within which plaintiff must bring the principal action; in case of noncompliance, the provisional remedy expires automatically (Art. 693 CCiv.P). Second, the court before which the main litigation is pending always has the power to modify or to revoke provisional remedies (Art. 697 CCiv.P). Revocation becomes mandatory whenever the judgment on the principal action ripens into res judicata (Art. 698 I(a) CCiv.P). In Greece, provisional relief has been enjoying increasingly practical importance. The rather slow progression of ordinary proceedings makes recourse to provisional remedies highly desirable. An identifiable tendency among the courts not to depart light-heartedly from the terms of an earlier provisional relief, although they are statutorily authorized to do so (Art. 695 CCiv.P), adds to their attraction. Taking into account these developments, the legislature time and again

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assigns to these accelerated and abbreviated proceedings for provisional remedies disputes which in themselves do not present an urgent character. XI.

NON-CONTENTIOUS PROCEEDINGS

A.

DOCTRINAL FOUNDATION

According to both Article 94 II Const. and Article 1(a),(b) CCiv.P, the jurisdiction of the ordinary civil courts includes not only the adjudication of controversies but also the disposition of the so-called ‘affairs of voluntary jurisdiction’ (υποθέσεις εκούσιας δικαιοδοσίας, ypotheseis ekousias dikaiodosias) which are assigned to them by statute. A distinction is thus drawn between contentious or adversary (iurisdictio contentiosa) and non-contentious or voluntary or ex parte jurisdiction (iurisdictio voluntaria). The criterion is to be found in the nature of the subjectmatter under consideration as well as in the operation of the judicial decision on it. Disputes involve the violation of a substantive right as between at least two persons; they aim at a decision evaluating the behavior of persons in the past, inferring therefrom the consequences provided for in the law. By contrast, noncontentious affairs do not refer to relationships between persons, but contemplate one person as an individual and his legal situation; they aspire to protect it through judicial measures taken not as a sanction for past deficiencies but in anticipation of future needs. Functionally, therefore, voluntary jurisdiction appears similar to public administration rather than to proper civil justice. This tenuous relationship between non-contentious affairs and civil procedure explains why the former require a specific statute for them to be assigned to the jurisdiction of ordinary civil courts. B.

EXAMPLES OF NON-CONTENTIOUS MATTERS

According to the Code of Civil Procedure, the list of non-contentious affairs to be dealt with by the ordinary civil courts is quite long (Arts 782–866), and includes topics dispersed over the entire realm of private law. For instance, the list includes declaring a person whose death is strongly probable as an absentee, or revoking such a declaration (Arts 40, 46 CC, Arts 783–785 CCiv.P; see Ch. 5, Section II C); declaring a lost negotiable instrument as void (Art. 895 CC; Arts 850– 860 CCiv.P); authorizing the alienation of a thing pledged (Art. 1237 CC; Art. 792 CCiv.P); pronouncing the judicial assistance of persons, as well as revoking such status (Arts 1666, 1669, 1676–1686 CC, as amended by Law 2447/1996; Arts 801–806 CCiv.P; see Ch. 9, Section VII D, E); granting, retracting, annulling, revoking, or amending a certificate of inheritance (Arts 1956–1966 CC; Arts 819–824 CCiv.P; see Ch. 10, Section II F) are all examples of non-contentious matters.

370 C.

Konstantinos D. Kerameus PROCEDURAL FEATURES

The procedural characteristics of non-contentious proceedings are highlighted in Articles 740–781 CCiv.P. Subject-matter competence belongs to the one-member district courts, or in exceptional cases (e.g., bankruptcy proceedings), to the threemember district courts or to the justices of peace (Art. 740 CCiv.P; Art. 44 of the Introductory Law to the CCiv.P). There exist no actual parties but only the person introducing the request. A copy of the request is in many cases served on the public prosecutor or on such third persons as the judge may designate (Art. 748 II, III CCiv.P). The court exercises quasi-inquisitional powers in establishing the relevant facts (Art. 744 CCiv.P). Even final judgments are subject to revocation or modification upon a showing of new facts (Art. 758 CCiv.P). Appeals may be taken even by persons who, having participated in the lower-court proceedings, were not aggrieved by the decision under attack (Arts 761, 769 CCiv.P). Regular appeal (Arts 763–766 CCiv.P), reopening of contested proceedings (Arts 767, 768 CCiv.P), and cassation (Arts 769–772 CCiv.P), as well as third-party opposition (τριτανακοπή, tritanakopi; tierce opposition; Arts 773–775 CCiv.P; see also Arts 586–590 CCiv.P within contentious jurisdiction), are available here as well. It must be noted that the benefits of a suspensive effect do not attach as of right to any of these methods of attack (Arts 763, 770, 771, 774, 776 I(c), 777 CCiv.P; see above, Section VIII A). XII.

ARBITRATION

A.

LEGISLATIVE STATUS

In addition to being a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (ratified by Law Decree 4220/1961, GG A 173), Greece modernized her domestic law of arbitration (διαιτησία, diaitisia) in Book VII of the Code of Civil Procedure (Arts 867–903 CCiv.P). The code treats arbitration as a method of settling private law disputes, which method is quasiequal to litigation in the ordinary courts. Particularly in both international and domestic commercial relations, arbitration has expanded in frequency and importance. It has even obtained constitutional sanction in the context of the protection of foreign investments through the reference made in Article 107 II Const. to Law Decree 2687/1953 which provides for arbitration as the exclusive way of resolving all related disputes. Recent critics arguing that such arbitration is tantamount to an unconstitutional and inadvisable deprivation of the powers of the judge assigned to everyone by law (Art. 8 I Const.) are truly isolated. Moreover, Greece enacted in 1999 a special law pertaining to international commercial arbitration (Law 2735/1999). This law embodies and transfers to Greece the UNCITRAL Model Law on the matter. Since deviations are limited and not particularly important, this

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section presents the Greek law on domestic arbitration as modernized in the Code of Civil Procedure and, with regard to international commercial arbitration, refers generally to the UNCITRAL principles. B.

ARBITRATION AGREEMENT

Nearly all private law disputes are arbitrable under the sole condition that the parties have the power to dispose of the relationship in question by agreement (Art. 867 CCiv.P); accordingly, arbitration is not allowed in divorce and other matrimonial cases of personal nature. A further exception pertains to labor disputes which are not arbitrable either (Art. 867.2 CCiv.P). Both existing controversies and eventual disputes, provided that the latter will result from a present legal relationship, may be likewise submitted to arbitration (Art. 868 CCiv.P). In both instances a document in writing, not necessarily a notarial one, is the only formal requirement (Art. 869 CCiv.P). An arbitral clause (συμφωνία περί διαιτησίας, symfonia peri diaitisias) is most often placed within the text of the civil or commercial contract itself. The scope of any arbitral agreement depends entirely on the parties’ will. If, as is often the case, it extends to all disputes arising out of the contract, then any claim related to the contract and its performance, including a tortious claim, is excluded from the jurisdiction of the ordinary courts and must be submitted to arbitration. C.

ARBITRAL PROCEDURE

There are detailed statutory rules concerning the nomination of arbitrators (Arts 871–880, 883 CCiv.P); in case of disagreement, arbitrators – usually the umpire – are appointed by the one-member district court (Art. 878 CCiv.P). The parties may determine in the arbitration agreement the procedure to be followed, otherwise this task falls on the arbitrators themselves (Art. 886 I CCiv.P). Institutional arbitration (Art. 902 CCiv.P; μόνιμη διαιτησία, monimi diaitisia) is subject to a special regime imposed by presidential decree. However, no arbitral procedure can infringe upon the equality of the parties and their right to an adequate hearing (Arts 886 II, 897(5), 902 II(c) CCiv.P). Cases have further tightened these limits to arbitral activity. It has been held for example that an arbitrator’s private knowledge of relevant facts may not be used because this knowledge would prevent the parties from verifying the sources of information, thus turning a supposedly neutral arbitrator into an involved witness.12

12. AP 1509/1982, NoB 31 (1983) 1355–1356.

372 D.

Konstantinos D. Kerameus AUTHORITY OF ARBITRATORS

The authority of arbitrators depends on the will of the parties, combined with some principles of public policy. Unless the parties have provided otherwise, the arbitrators are entitled to inquire into the validity and scope of the arbitral agreement (Art. 887 II CCiv.P). Even if the main contract, of which the arbitral agreement is a part, is invalid, the authority of the arbitrators to assess this invalidity and its consequences usually remains unimpaired. The parties may designate the applicable substantive law. They may also authorize the arbitrators to issue an award ex aequo et bono. In the absence of such directions, the arbitrators are expected to follow the Greek choice of law rules. In all instances, provisions of public policy must be respected (Art. 890 CCiv.P). For similar reasons arbitrators are not allowed to grant, to modify or to revoke provisional remedies (Art. 889 CCiv.P).

E.

CONTROL BY THE ORDINARY COURTS

Unless the parties have agreed to the contrary, no methods of review are allowed with respect to awards (Art. 895 CCiv.P). A certain control is, of course, exercised by the ordinary courts, both in the beginning and at the end of arbitral proceedings. In the beginning, it may happen that a party to an arbitral agreement brings suit in the ordinary courts; the court then, assuming that the defendant pleads the arbitral agreement, will refer the dispute to arbitration after ascertaining that the agreement is valid and that the dispute falls thereunder (Arts 264, 870 I CCiv. P). At the end, a party aggrieved by the award may bring an action in the court of appeals in the region where it was rendered to set it aside (αγωγή ακυρώσεως διαιτητικής αποφάσεως, agogi akyroseos diaititikis apofaseos; Arts 897–901 CCiv. P, as amended through Art. 3 of Law 1816/1988). However, the grounds for this remedy are rather narrow. They include (Art. 897 CCiv.P): invalidity of the arbitral agreement; exceeding its terms or the scope of the arbitrators’ authority; infringement of the right to equal treatment or to an adequate hearing; violation of public policy; or any ground for the reopening of contested judgments (see above, Section VIII D). The courts have given expansive construction to the grounds for setting aside an award, and a significant per centage of awards are subsequently annulled. This remedy can go up to Areios Pagos. However, it has no suspensive effect. The award (διαιτητική απόφαση, diaititiki apofasi), unless set aside, becomes res judicata (Art. 896 CCiv.P) and can be enforced upon its filing with the clerk of the one-member district court (Arts 893 II, 904 II(b), 918 II(d) CCiv.P).

Judicial Organization and Civil Procedure XIII.

ENFORCEMENT PROCEEDINGS

A.

ENFORCEABLE INSTRUMENTS

373

The Greek law of execution allows the creditor to resort to public authority to enforce his claim. Instruments which are enforceable by execution (εκτελεστοί τίτλοι, ektelestoi titloi) essentially include three groups (Art. 904 II CCiv.P): (a) all final affirmative judgments, i.e. those which order specific performance or payment of money and are no longer subject to ordinary methods of attack or, pending such an attack, are given provisional enforcement (see above, Section VIII A); (b) arbitral awards; and (c) notarial documents enforceable by reason of their form. Foreign judgments and arbitral awards are likewise enforceable after being granted an exequatur under Articles 905, 906, 323, and 903 CCiv.P, as explained in Ch. 17, Section III. B.

CREDITOR’S INITIATIVE AND CONTROL COURT

BY THE

Regardless of the kind of enforceable instrument, the intervention of judicial authorities during the enforcement proceedings (αναγκαστική εκτέλεση, anangastiki ektelesi) is not preventive but rather of a controlling nature. Execution is considered to be a continuation of adjudication in cases of non-voluntary compliance. Therefore, in accordance with the dispositive principle of adjudication (see above, Section V A (a)), it is subject to party initiative, especially that of the creditor holding the enforceable instrument. Enforcement proceedings start with a formal notice by the creditor to the debtor, inviting the latter to voluntary performance, otherwise threatening execution. This notice (επιταγή, epitagi) is placed at the bottom of a certified copy of the enforceable instrument (απóγραφο, apografo; Art. 924 CCiv.P). If the debtor remains silent, the creditor proceeds with enforcement by giving an order (εντολή προς εκτέλεση, entoli pros ektelesi; Art. 927 CCiv.P) to a marshal who is the agent authorized to levy execution and to perform various other related functions (Arts 927–931, 954, 960 I, 993, 999 I, 1049 II CCiv.P). Should the debtor deem that the enforceable instrument is invalid, that the enforcement rules have not been complied with, or even that the creditor’s claim has been paid or set off, it is up to him to make the respective motion (ανακοπή, anakopi) before the one-member district court (Arts 933–937 CCiv.P). Only then are the courts called upon to judge on the prior steps of enforcement proceedings. On appeal, the motion can go all the way to Areios Pagos; however, it does not stay execution, unless otherwise ordered by the court (Arts 938, 939 CCiv.P).

374 C.

Konstantinos D. Kerameus EXECUTION WITH RESPECT TO SPECIFIC PERFORMANCE

With respect to methods of execution, distinctions are drawn between direct specific performance and enforcement to satisfy a money claim which usually results in a levy on property. Specific performance applies to duties to transfer title to movable (Arts 941, 942 CCiv.P) and immovable property (Art. 943 CCiv.P, see also Art. 944 CCiv.P for ships and aircraft), as well as to obligations to perform (Arts 945, 946 CCiv.P) or not to perform or not to oppose a specific act (Art. 947 CCiv.P). If, however, the debtor fails to meet the obligation to perform a certain act, enforcement becomes necessarily indirect: the creditor is authorized to have the act performed at the debtor’s expense (Art. 945 CCiv.P). Where the specific act cannot be performed by a third person or the debtor does not omit or opposes an act, the latter will be subjected to a fine of up to EUR 5,900, and to imprisonment for debt for a period of up to one year (Art. 946 CCiv.P). D.

EXECUTION TO SATISFY A MONEY CLAIM

Of greater practical significance is enforcement on property to satisfy a money claim. There are four types of attachment (κατάσχεση, kataschesi) for the purpose of bringing property under judicial control ultimately leading to a public auction and, in the meantime, suspending the debtor’s power of disposal: (a) enforcement on chattels (Arts 953–981 CCiv.P); (b) enforcement on immovables, ships, and aircraft (Arts 992–1016 CCiv.P); (c) garnishment, which also includes reaching chattels of a debtor that are not in his possession (Arts 982–991 CCiv.P); and (d) enforcement on debtor’s special assets, like copyrights, patents, and film exploitation rights (Arts 1022–1033 CCiv.P). Detailed rules provide for the orderly distribution of funds realized in a public auction (Arts 974–978, 1007, 988 I 3, 1024 II, 1030 III 3, 4 CCiv.P), with special treatment granted to secured creditors (Arts 976(2), 977 I(2), 1007 I 2, 1008 CCiv.P). In essence, creditors other than the petitioning one are entitled to assert their claims (αναγγελία, anangelia; Art. 972 CCiv.P). Distribution will follow on an equal footing among all announced creditors, allotting to each the same per centage on his claim. Greek law thus rejects the Germanic system, which accords preference to the petitioning creditor, and follows the Roman system of proportional distribution. Proportionality is, however, disturbed in two respects: first, to the benefit of creditors enjoying a real security right, i.e. pledge or mortgage (see Ch. 7, Section VII); and second, to the benefit of creditors enjoying specific priorities (προνόμια, pronomia; Art. 975 CCiv.P). Creditors with specific priorities rank before creditors with real security rights; this precedence is, however, limited only to one-third of the sale proceeds, so that the remaining two-thirds are reserved for the satisfaction of secured creditors (Arts 977, 1007 CCiv.P).

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There are two additional methods of execution to satisfy, directly or indirectly, a money claim; the first was enacted in recent years through Law 2810/1954 and integrated then into the Code of Civil Procedure (Arts 1034– 1046); the second is very old but still in existence, and occasionally effective. The former is a form of receivership called ‘compulsory administration’ (αναγκαστική διαχείριση, anangastiki diacheirisi) of a debtor’s immovables or business, which are henceforth managed by an administrator appointed by the court (see Ch. 11, Section II B). The creditors receive quarterly distributions on their claims out of the profits of the new management (Art. 1043 CCiv.P). The latter method consists in the debtor’s imprisonment for a period up to one year (προσωπική κράτηση, prosopiki kratisi; Arts 1047–1054 CCiv.P). This measure is imposed by specific judicial decision only on merchants for commercial debts; it is also generally allowed for the satisfaction of tortuous claims. Imprisonment is not often utilized and is subject to serious constitutional doubt but may still function as an effective threat. Under the International Covenant on Civil and Political Rights, in force since March 23, 1976 and applicable in Greece since ratification by Law 2462/1997 (GG A 25), ‘no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.’ In interpreting this provision, Areios Pagos restricted the scope of merchant imprisonment because of non-payment of contractual obligations only to merchants who have the economic means to comply with such obligation but intentionally discard it.13 BIBLIOGRAPHICAL NOTE 1. Under the old Code of Civil Procedure (in force between 1835 and 1968), the two leading treatises, which are still of use today, were V. Oikonomidis, M. Livadas and L. Gidopoulos, Manual of Civil Procedure, vols I–III (7th edn, Athens, 1924-1926), and S. Eukleidis and K. Papadopoulos, Interpretation of Civil Procedure, vols I–II (3rd edn, Athens, 1932). The most complete digest of judicial opinions was A. Kitsikopoulos, Civil Procedure, A Commentary by Article, vols I–X plus annex A (Athens, 1934–1955). 2. The materials and other preparatory works for the new Code of Civil Procedure in force since September 16, 1968 are to be found in the Draft of Civil Procedure, elaborated by the Drafting Committee and published by the Ministry of Justice in Athens, vols I–IX (Athens, 1940–1974), as well as in the Minutes of the Meetings of the Revision Committee for a Draft Code of Civil Procedure and Its Introductory Law (Athens, 1967). There is only one complete translation of the Code of Civil Procedure in a foreign language (German): G. Baumgärtel and G. Rammos, Das griechische Zivilprozessgesetzbuch mit Einführungsgesetz (Cologne, 1969); 13. The leading case is AP 1597/2000, Hell.Dni 42 (2001) 1304, also confirmed by AP (full bench) 23/2005, Harm. 60 (2006) 405.

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but even this translation refers only to the initial text of the Code, not extending to the subsequent important amendments. 3. There exist numerous treatises and commentaries in Greek on the Code of Civil Procedure. Most of them are incomplete, and can hardly cope with the unusually frequent legislative amendments. The following publications are listed alphabetically by author: A.

TREATISES

K. Beys, C. Calavros and S. Stamatopoulos, Procedure of Private Disputes, General Part (Athens, 1999). C. Calavros, Civil Procedure, General Part (Athens-Komotini, 2003). Ch. Fragistas, Civil Procedure, General Part, University Lectures (Thessaloniki, without date). K.D. Kerameus, Civil Procedure, vol. I (2nd edn, Thessaloniki, 1983). K.D. Kerameus, Civil Procedure, General Part (Athens-Thessaloniki, 1986). G. Mitsopoulos, Civil Procedure, vol. I (Athens, 1972). N. Nikas, Civil Procedure, vols I–II (Athens-Thessaloniki, 2003–2005). G. Rammos, Manual of Civil Procedure, vols I–IV (Athens, 1978–1985). Two short presentations in English are A. Iatrou, Civil and Criminal Proceedings in Greece (Athens, 1981); H. Tagaras and H. Meidanis, ‘Greece’ in European Civil Practice, vol. II, A. Layton and H. Mercer (gen. eds) (2nd edn, London, 2004) 212–241. A more extensive one is P. Yessiou-Faltsi, Civil Procedure in Hellas (Athens-The Hague-London-Boston, 1995). See also an Outline of Greek Law by K.D. Kerameus (Athens-Komotini, 1998) [in Greek]. For a modern comparative treatment of enforcement law around the world see K.D. Kerameus, ‘Enforcement Proceedings’ in International Encyclopedia of Comparative Law, vol. XVI, Ch. 10 (Tübingen-Dordrecht-Boston-Lancaster, 2002). Purely Greek law of enforcement has been taken care of by I. Brinias, Enforcement Proceedings, vols I-V (2nd edn, Athens,1978–1982) and P. Yessiou-Faltsi, The Law of Enforcement, vols I–III (Athens-Thessaloniki, 1998–2006), both in Greek. B.

COMMENTARIES BY ARTICLE

K. Beys, Civil Procedure, fasc. 1-23 (various places of publication, 1973–2005). S. Delikostopoulos and L. Sinaniotis, Interpretation of the Code of Civil Procedure, vols I–III (Athens, 1968–1974). K.D. Kerameus, D.G. Kondylis and N.Th. Nikas, Interpretation of the Code of Civil Procedure: Article-by-Article Commentary, vols I–II (Athens-ThessalonikiKomotini, 2000), and Supplement (Athens-Thessaloniki, 2003). V. Vathrakokoilis, Code of Civil Procedure, vols I–VI (Athens, 1994–1997), and Supplement (Athens, 2001).

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4. For cases decided by Areios Pagos and otherwise remaining partly unreported, see Basic Cases of Civil, Commercial, Labor and Procedural Law of the Years 1967–1982, published by the Athens Bar Association, vols I–VI plus Indexes (Athens, 1983–1984), especially vols I–II which are devoted to civil procedure. For a continuation of this collection covering the years 1983–1986, and partly 1987, see Supplement to Basic Cases, vols I–II (Athens, 1987), particularly vol. I 1–417, vol. II 1617–1646. 5. Many Greek proceduralists have published separate volumes with their essays, articles and other contributions to questions of civil procedure: K. Beys, vols I–II (Athens, 1980), C. Calavros (Athens-Komotini, 1988), Ch. Fragistas, vols I–III (Athens, 1980–1987), K.D. Kerameus, vols I–IV (various places of publication, 1980–2006), out of which vol. III (Athens-Komotini, 1995) is exclusively in foreign languages, G. Mitsopoulos, vols I–II (Athens, 1983–1997), G. Rammos, vols I–VI (Athens, 1948–1968), P. Yessiou-Faltsi, vols I–II (Athens-Thessaloniki, 1981–1995), P. Zissis, vols I–IV (Athens, 1963–1972). One should also mention some collections of essays in honor respectively of K. Beys, vols I–V (Athens, 2003), Ch. Fragistas, vols I–VI (Thessaloniki, 1966–1971), P. Kargados (AthensKomotini, 2004), E. Michelakis (Athens, 1973), G. Mitsopoulos, vols I–II (Athens, 1993), G. Oikonomopoulos (Athens, 1981), G. Rammos, vols I–II (Athens, 1979), consisting mainly of procedural studies. 6. Quite a number of articles on special questions of Greek civil procedure and judicial organization have been written by Greek authors in foreign languages. Most of them are published in English in Revue hellénique de droit international (Athens). Articles in foreign languages include A. Kaissis, ‘Herausforderung Informationsgesellschaft: Die Anwendung moderner Technologien im Zivilprozess und anderen Verfahren’, RHDI 52 (1999) 503–513; P. Kargados, ‘Summary adjudication in Hellas’, RHDI 51 (1998) 123–155; K.D. Kerameus, ‘The Use of Conciliation for Dispute Settlement’, RHDI 32 (1979) 41–53; K.D. Kerameus, ‘Judicial Independence in Modern Legal Developments’, RHDI 35–36 (1982–1983) 335–346; N. Klamaris, ‘Einige kritische Gedanken zur Frage der Verfassungsgarantie der Rechtsmittel’, RHDI 37 (1984) 353–358; N. Klamaris and G. Orfanidis, ‘Die Zwangvollstreckung der gerichtlichen Entscheidungen und die Vollstreckungsmittel der Gerichte nach dem griechischen Zivilprozessrecht’, RHDI 38-39 (1985–1986) 335–358; N. Klamaris and P.-E. Efstratiou, ‘Access to Justice as a Fundamental Right’, RHDI 51 (1998) 291–310; D. Maniotis, ‘Mass Torts – Some Procedural Aspects’, RHDI 47 (1994) 99–116; P. Yessiou-Faltsi, ‘The Production of Evidence in the Case According [to] the Greek Code of Civil Procedure’, RHDI 32 (1979) 88–111; P. Yessiou-Faltsi, ‘Judicial Responsibility in Greece’, RHDI 35–36 (1982–1983) 281–311; P. Yessiou-Faltsi, ‘Le droit à la preuve’, RHDI 35–36 (1984) 275–307; P. Yessiou-Faltsi and N. Paissidou, ‘La valeur du témoignage’, RHDI 47 (1994) 185–215; P. Yessiou-Faltsi and A. Tamamidis, ‘Recent Tendencies in the Position of the Judge’, RHDI 42 (1999) 459–484; Zeitschrift für Zivilprozess (Cologne, Berlin, Bonn, Munich), especially vols 74 (1961), 78 (1965), 79 (1966), 81 (1968), 91 (1978), 92 (1979), 96 (1983),

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99 (1986), 100 (1987), 101 (1988), 105 (1992); nowadays the international Pendant: Zeitschrift für Zivilprozess International, vols 1 (1996), 3 (1998), 8 (2003), 9 (2004); Revue critique de droit international privé (Paris). There are also quite numerous doctoral dissertations submitted by Greek jurists to German, French and English universities and published in the respective languages. 7. With regard to arbitration, see S. Koussoulis, Arbitration. An Article-by-Article Interpretation (Athens-Thessaloniki, 2004) and The Law of Arbitration (AthensThessaloniki, 2006) [both in Greek]; G. Verveniotis, International Commercial Arbitration, vol. I: New York Convention – Bilateral Treaties (Athens-Komotini, 1990) [in Greek], vol. II: Construction and Arbitration. Cases from the Greek Experience (Athens-Komotini 2000) [in English]. Some fairly recent presentations in English include N. Deloukas, ‘The Arbitration in Greece’ in: Arbitration, G. Levi (ed.) (Milano, 1991) 103–129; A. Dimolitsa, ‘Arbitration Agreements and Foreign Investments. The Greek State Between Contractual Commitment and Sovereign Intervention’, RHDI 42–43 (1989–1990) 259–314; A. Foustoucos and S. Koussoulis, ‘Greece’, in International Handbook on Commercial Arbitration, P. Sanders (ed.) (The Hague, 2001), with three annexes; K.D. Kerameus, ‘The Examination of an Arbitration Agreement by State Courts While Arbitration is Pending’, RHDI 42–43 (1989–1990) 217–232; K.D. Kerameus, ‘The New Greek Law on International Commercial Arbitration’, RHDI 52 (1999) 583–585; ‘Loi 2735/1999 ‘Arbitrage Commercial International’ / Law 2735/1999 ‘International Commercial Arbitration’, RHDI 52 (1999) 586–621 [translation of the enactment in French and English by A. Dimolitsa and S. Koussoulis respectively]; S. Koussoulis, ‘Actual Problems of International Arbitration. The Greek Law in Comparison with the UNCITRAL Model Law’, RHDI 49 (1996) 479–500; G. Verveniotis, ‘Arbitrators and Contractual Groups’, RHDI 42-43 (1989–1990) 367–375. 8. There are also some important monographs on the theoretical and logical bases of civil procedure. Recent ones include: Missing of Legal Basis as a Ground for Cassation (2005), and Thèmes de théorie générale et de logique du droit (2006), both of them by G. Mitsopoulos and published in Athens.

Chapter 17

Conflict of Laws, International Jurisdiction, and Recognition and Enforcement of Judgments and Awards Phaedon John Kozyris*

I.

CONFLICT OF LAWS

A.

INTRODUCTION

The Greek system, in the Civil Law tradition, consists of statutory rules which, quite commendably, are generally bilateral, select a single applicable law and use terms which are broader than those of the corresponding domestic substantive law. The principal repository of these rules is Book I, Chapter Two of the Civil Code comprising Articles 4–33. In addition, Greece is party to certain international conventions which govern in their particular circumstances.

* Professor of Law (emer.), The Ohio State University and University of Thessaloniki. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 379–408. © 2008, Kluwer Law International BV, The Netherlands.

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B.

OBLIGATIONS

1.

Contracts

(a)

The Civil Code

As under prior law, the autonomy of the parties occupies center stage in Article 25 CC for obligations arising out of contract in the Continental sense, which extends to every type of agreement including, for example, promises of gifts. Failing submission by the parties to the law of their choice, however, Article 25 abandons the lex loci approach of prior law and, under English and German influence, opts for the ‘proper’ law of the contract which is to be selected on the basis of a quantitative evaluation of all ‘special circumstances’. These two rules of Article 25, which incidentally are considered ‘successful’ by the writers, are quite open-ended. First, is this autonomy without limit, as suggested by the unqualified language in the text? The answer appears to be in the negative. Autonomy comes into play only for multi-state contracts, not for purely domestic ones, and even then the law chosen must have a ‘significant’ (major? substantial? reasonable?) connection with the contract. Only on matters of selecting a particular court or submitting the future dispute to arbitration is the party choice absolutely respected. The choice may be either express or implied and may take place even at a later time up to and during the adjudication of a particular dispute. It may be partial and it may subject different issues to different laws. Article 25 CC does not treat separately the preliminary question of what law governs the validity of the choice itself, which question Article 30 CC of the Maridakis project of the Civil Code subjected to the law of the place of the making. It would appear that such ‘bootstrapping’ is not legitimate. Second, as should have been obvious to the drafters, the invitation to the courts to apply the ‘proper’ law of the contract was not likely to solve the conflicts problem by some kind of magic. The liberation from rules was matched, if not exceeded, by the aggravation and uncertainty that accompanied the attempt to define ‘propriety’ and make it work. In decisions that can be counted in the hundreds, if not thousands, many of them involving maritime law, the courts struggled to make sensible choices based mostly on some combination of the usual connecting factors, including the presumed intention and nationality of the parties and generally excluding the lex fori as such. The lex loci solutionis that usually prevailed under prior law is just one possible choice, especially since no clear-cut distinction is drawn now between matters of execution and matters of performance. This does not mean that place of making and place of performance are not relevant, even perhaps important, connecting factors, but only that their propriety must be explicated or at least specifically invoked each time. It is too early to distill a manageable set of conflict rules, or at least some system from these cases, which operate in a manner resembling the ‘most significant relationship’ standards of the Second Restatement in the US. Once the choice is made, the applicable law governs all issues arising under the contract and dépeçage is in principle rejected.

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In accordance with the Civil Code systematics, Article 25 CC is subject to the general conflicts provisions governing the capacity of the parties and the form of all juridical acts, including contracts. Thus, it does not apply to: (a) capacity to contract, which is generally governed as to each party by the law of his nationality under Article 7 CC (but most contracts made in Greece by an alien natural person consistently with the Greek rules on capacity are validated even if the alien had no such capacity under his own national law (Art. 9 CC); and (b) form of contract, including issues under the statute of frauds, which is subject to the alternative reference rule in Article 11 CC validating a contract as to form if it complies with either the law of the place of making or the national law of the parties or the law governing its substance (lex causae). Although Article 25 CC refers only to ‘contractual’ obligations, as so characterized in a broader sense under Greek law, the prevailing view appears to be that it applies by analogy to obligations based on quasi-contract, at least where the parties had a prior legal relationship,1 and perhaps also to negotiorum gestio and unjust enrichment. Powers of attorney (πληρεξούσιο, plirexousio; εξουσιοδότηση, exousiodotisi) are characterized as contractual, and, therefore, subject to Articles 7, 11 and 25 CC. Hiring a lawyer is also valid if done under the law of the place of the making. Even when the applicable law is that of Greece, and a notarial instrument is required for the validity of some juridical acts such as some powers of attorney, a conveyance or a will, the Greek authorities generally have been accepting of US notarization. This is especially so when the notary public is also a lawyer, as sufficient under the liberal rules governing questions of form, despite the significant differences in the role and function of the notary and in the notarial form between the two countries. As will be explained immediately below, Greece is a party to the Rome Convention and, as a result, the applicability of Article 25 CC has been correspondingly reduced. (b)

International Conventions

As a member of the European Community, Greece has ratified the EEC Convention on the Law Applicable to Contractual Obligations of June 19, 19802 (Rome Convention; ratified by Law 1792/1988, GG A 142) which supersedes, as of 1991, Article 25 CC pro tanto. Greece has also ratified the two Protocols which subject the interpretation of the Convention to the jurisdiction of the European Court of Justice (Law 2005/1992, GG A 10).3 Since the Convention applies in a global manner, which is irrespective of whether the law to be chosen is that of a member 1. CA (Athens) 14059/1988, NoB 38 (1990) 458–460; PP (Piraeus) 810/1994, ENautil.D 23 (1995) 506–508. 2. OJ L 266/1–19, 1980. 3. Respectively, First Protocol on the interpretation of the 1980 Convention by the Court of Justice (consolidated version), OJ C 27/47–51, 1998 and Second Protocol conferring on the Court of Justice powers to interpret the 1980 Convention (consolidated version), OJ C 27/52–53, 1998.

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state or a third country, Article 25 CC is now essentially limited to those kinds of contracts which fall outside the coverage of the Convention. Further, the Convention extends to the issues both of the form of and of the capacity to contract, thus reducing pro tanto also the scope of Articles 7, 9 and 11 CC. However, it should be remembered that the Convention does not apply when the contract is purely and totally domestic.4 This means that it does not govern the choice among local rules e.g. in a federal state except, for a multi-state contract, after the law of that state has first been chosen (Art. 19 of the Convention). The Convention validates party autonomy quite broadly, and regardless of significant contacts, except when they are all concentrated in one country in which case only the mandatory rules of such country must be respected. The choice must refer to an actual legal system itself so that, when the parties refer, e.g., to the lex mercatoria, they are deemed to incorporate its provisions by reference as contract terms. The existence and validity of the choice of law by the parties are governed by the law applicable without reference to the choice itself. In the absence of party choice, the applicable law is that of the country with which the contract is most closely connected, i.e. the emphasis is placed on the geographical factor. The most important innovation of the Convention is the rebuttable presumption that the country most closely connected is presumed to be that where the obligor of the characteristic performance has his habitual residence, principal place of business or central administration. Also, for matters of performance reference is made to the lex loci solutionis. Dépeçage is permitted. The mandatory rules of the forum always apply. Special rules apply to consumer and employment contracts as well as to contracts relating to real property (lex rei sitae) and to transports. The Convention does not extend to certain contracts and issues such as: negotiable instruments, trusts, internal corporate matters, insurance, family and inheritance agreements, and general capacity of natural persons. Also excluded are court-selecting agreements and arbitration clauses. As a party to the Geneva Conventions on negotiable instruments, Greece has enacted special legislation (Arts 90–96 of Law 5325/1932 and 70–76 of Law 5960/1933) governing choiceof-law questions in those fields. In general, the capacity of each party is governed either by his national law, including its conflicts provisions, or by the law of the country of signature, whichever would validate the obligation. With respect to form, compliance with the law of the country of signature or of payment suffices for checks, whereas for promissory notes and bills of exchange only the law of the country of signature applies. The law of the country of signature governs also the obligations of all parties other than those of the primary debtor of a note or of a bill, which are subject to the law of the country of payment. The same law also extends to issues of loss, theft and destruction of the document as well as of consent, negotiability and defenses.

4.

MP (Piraeus) 390/1996, DEE 2 (1996) 499–501.

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Greece has also ratified the UN Convention on the International Sale of Goods (Vienna Convention; this was ratified by Law 2532/1997, GG A 227) as of 1999, which now dominates that field. 2.

Torts

The lex loci delicti commissi is enshrined in a single-sentence provision of Article 26 CC. This represents a major departure from Article 6 II of the Civil Law of 1856 which, under Savigny’s and Wachter’s influence, contained a unilateral rule applying always the lex fori. Conflicts writers neglect tort issues and the only doctrinal dispute worth mentioning is whether a tort is ‘committed’ at the place of the conduct or of its effects. Even here the discussion is inconclusive, with some tendency to favor conduct over effects or to give plaintiff the choice. For traffic accidents, the lex loci delicti reigns supreme, Greece not having become party to the Hague Convention on the Law Applicable to Traffic Accidents of 1971, in force since 1975. Whether the victim has a direct action against the insurer is characterized as a matter of contract rather than tort and subject to the law governing the insurance policy.5 The same law appears also applicable to the subrogation rights of an insurer against a tortfeasor. Further, Greece is not a party to the Hague Convention on the Law Applicable to Products Liability of 1973, effective since 1977, which focuses on the place where the harm occurred if it is also the place of the habitual residence of the victim or of the main establishment of the defendant or of the acquisition of the product. The antitrust statute (Law 703/1977, as amended) specifically provides that it is applicable to violations which have or threaten to have effects in Greece (objective territorial principle; Art. 32). We should also mention here that the European Union (a) already in 1985 adopted a Directive approximating a significant part of the substantive law of producer’s liability;6 and (b) it has embarked on a major effort, still in progress, to unify through a Regulation (Rome II) the choice of law applicable to noncontractual obligations. C.

PROPERTY

Property rights, including possessory rights, in movable and immovable things are governed by the lex rei sitae (Art. 27 CC). The same law applies to the form of ‘property’ contracts and other juridical acts having in rem effect, i.e., those which create, convey, modify or reduce property rights (Art. 12 CC). Where a movable is transferred to another country before a certain property right has been fully attached, it is the new lex rei sitae that applies to the entire right but facts prior to the transfer, such as the running of prescriptive periods, are taken into 5. AP 19/1995, Hell.Dni 36 (1995) 1533–1534. 6. Directive 85/374 on the approximation of laws, regulations and administrative provisions of the Member States concerning liability of defective products, OJ L 210/29–33, 1985.

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account. Documents of title are treated as things. According to the prevailing view, however, other intangibles are not ‘things’. If they are part of a personality right, they are governed by the national law of the person. Property rights on ships are governed by the law of the flag (Art. 9 of the CPr.ML). Rights to things in transit are governed normally by the law of the place of destination. Under old Law 2386/1920, intellectual property rights are governed by Greek law if the first publication took place in Greece. A newer statute (Law 2121/1993) includes in Article 67 a set of conflicts rules, applicable on a mutuality basis, which inter alia state that, unless a treaty to which Greece is a party provides otherwise, intellectual property rights are governed by the law of the place where the work first became legally available to the public. Otherwise, for unpublished works, the national law of the creator and that remedies are governed by the law of the forum. Generally, the principle of territoriality governs patent and trademark rights registered or recognized in Greece subject to any applicable treaty provisions (see Law 1883/1990, and Presidential Decree 16/1991 (GG A 6), which ratified the Washington Patent Cooperation Convention of 1970, as amended, and Article 33 IV of Law 2239/1994 protecting foreign trademarks also registered in Greece; as regards trademarks, it is further to be noted that Greece has ratified the Nice Convention (Law 2505/1997, GG A 118) and the Protocol to the Madrid Convention (Law 2783/2000, GG A 1); see also Regulation 40/94 for the European Community trade mark.7 A difficult question is presented by the so-called ‘cultural goods’, mostly archaeological treasures, which in Greece are considered to be ‘beyond commerce’, i.e. not subject to private property rights or to transfer, as belonging ultimately to the State. Greek courts obviously will respect and apply such rules as mandatory but it is possible that another state where the goods may be currently located will recognize the acquisition of property rights on them through transfers. The European Union adopted Directive 93/78 (transposed in Greece through Presidential Decree 133/1998) relating to art goods that have been illegally exported providing that any purported transfer may not be considered to be in good faith and calling for recognition of the mandatory rules of the country of origin. Finally, an Anglo-American trust, at least so much of it as it purports to have in rem effects, appears to fall within the realm of a ‘property’ contract or juridical act and, therefore, subject to the lex rei sitae. The use of trust terminology is not necessarily determinative, however, of the characterization question. A ‘trust’ may be deemed to include a contract or an agency or an inheritance or family relationship or a gift, or to divide title between residual ownership and usufruct, depending on its contents. Greek courts are known to treat the testamentary trustee as executor of a will9 and the life beneficiary as usufructuary.10 A trust relating 7. OJ L 11/1–36, 1994. 8. Council Directive 93/7 of March 15, 1993 on the return of cultural objects unlawfully removed from the territory of a Member State, OJ L 74/74–79, 1993. 9. MP (Athens) 7960/1981, Hell.Dni. 23 (1982) 42–43. 10. Athens Tax Court of First Instance 14150/1963, NoB 12 (1964) 52–54.

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to the support and maintenance of wife and children following a divorce may be treated as a special agreement involving elements of agency, fiduciary transfer of property, gift and contract in favor of third party. Greece is not party to the ambitious Hague Convention on the Law Applicable to Trusts and on Their Recognition of 1985, in effect since 1992, but it may be assumed that it might be consulted in addressing the choice-of-law aspect. The Convention applies only to express trusts, in particular those created with respect to specific property by a declaration of a trustee, inter vivos or at death, in favor of a beneficiary or dedicated to a purpose (Arts 2 and 3) and, as to applicable law, it recognizes a broad party autonomy for the settler to make a selection (Art. 6). In the absence of such a choice, Article 7 uses a ‘most close connection’ test referring to the places of administration, residence and business of the trustee, situs of the assets and objects and their fulfillment whereas Article 8 specifies a broad range of matters governed by the applicable law. However, Article 9 envisages the possibility of dépeçage and the application of a different law especially to matters of administration. Further, when the trustee has commingled or alienated assets of the trust in violation of its provisions, the rights of third parties to such assets are governed by the law chosen under the conflicts rules of the forum (Art. 11 (d)). An important purpose of the Convention is to mandate the recognition of foreign trusts and the enforcement of most elements of the trust structure (Art. 11) as a whole and consistently with its nature and purpose. By way of exception, it does allow, however, a departure when the situs of the assets and the purpose of the trust are located in a state which does not have such an institution (Art. 13) and makes room for the application of certain mandatory rules (Arts 15–16) and of the public policy (Art.18) of the forum. D.

DOMESTIC RELATIONS

The most comprehensive conflicts provisions of the Civil Code deal with family matters, where nationality is the prevailing connecting factor. It is also in this field that the reforms to implement the constitutional equality of the sexes (Law 1329/1983; see Ch. 9, Sections I, II E, F) have taken place. In view of the close connection between choice of law, jurisdiction, and recognition and enforcement of judgments in this field, they will be treated together here. 1.

Marriage

(a)

Creation

A marriage is valid as to substantive requirements, e.g. age, required consents, degree of relationship, if it meets the requirements of the national law of either of the parties at the time of celebration (Art. 13 I 1 CC), subject, however, to the potential ‘public order’ reservation (Art. 33 CC) which may prevent recognition

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e.g. of marriages of persons of the same sex or with many spouses. Persons domiciled abroad who get married abroad are also entitled to the favorable provisions of the Paris Convention on the Facilitation of Marriages Abroad of 1964 (ratified by Law 1656/1986, GG A 183). The marriage is valid as to form if it meets the requirements either of the national law of either party or of the law of the place of celebration (Art. 13 I(2) CC). Civil marriages are now available in Greece. Public order may prevent the recognition of Common Law marriages or marriages by proxy. A Greek abroad may now also be married civilly at a Greek consulate (Art. 13 II CC), provided, of course, that this is permitted (not necessarily recognized) under the law of the state where the consulate is located. For non-Greeks marrying in their consulates in Greece, see Law 90/1975 and Law 1363/1983. A retroactive provision of major practical significance was adopted in Article 7 of Law 1250/1982, as amended, to the effect that prior marriages abroad involving at least one Greek spouse, which would have been invalid and treated as non-existent without a religious ceremony, are considered valid as to form ab initio if they complied with the requirements of the lex loci celebrationis except where (a) at least one of the spouses validly remarried subsequently and before 1982, (b) the spouses have lived apart for at least three years, (c) there exist other special circumstances of hardship or (d) a divorce has been already granted abroad or a res judicata-producing declaratory judgment of nullity has been obtained in a Greek court. Despite the exceptions, the children are considered born in wedlock, but do not enjoy full inheritance rights. This validates many marriages of Greeks abroad previously considered non-existent for failure to comply with the required religious formalities. (b)

Spousal Relationships

The personal relationship of the spouses is subject, in order of priority, to the law (a) of their last at least one common nationality during marriage, and before the related event, if one of them still has it; (b) of their last common marital habitual residence, before the related event; or (c) to which they are most closely connected (Art. 14 CC).11 This includes issues such as domicile, name change, powers to act for the marriage or engage in business, support, etc. It is to be noted that, under Article 31 CC, for conflicts purposes, a Greek who has also another nationality is considered only Greek whereas a person with many foreign nationalities is deemed to have the one with which he is most closely connected. As to property relations, the same rules apply but they are fixed once and for all at the time of celebration of the marriage (Art. 15 CC). Not every propertyrelated act, e.g. a gift between spouses, is characterized as involving a marital property relation, so that, where appropriate, it may be subjected to the rules governing contracts such as Article 25 CC.12 It should be mentioned here that, under Greek substantive law, the spouses may agree to a regime of community of 11. CA Athens 8047/1990, Hell.Dni 33 (1992) 173–174. 12. AP 428/1994, Hell.Dni 36 (1995) 308.

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property (Arts 1402 et seq. CC.) Further, a special statutory provision (the ‘Onassis clause’!) validates prenuptial or postnuptial contracts made abroad between a Greek and a foreign citizen, both domiciled abroad, whereby the foreign spouse relinquishes any and all inheritance rights to the property of the Greek spouse (Law Decree 472/1974). (c)

Dissolution

Divorce and judicial separation are also subject to the personal relationship conflicts rules but as of the time of the commencement of the proceedings (Art. 16 CC). ‘Divorce’ should be read broadly to cover all kinds of marriage dissolution. It is to be noted that a dissolution may be recognized even if issued by a non-judicial authority in the state of the applicable law.13 (d)

Jurisdiction, Recognition, and Enforcement

Divorce jurisdiction exists first under the general rules of Articles 3, and 22 et seq. CCiv.P discussed below (the defendant is domiciled in Greece, etc.). In addition, Greek courts may entertain actions for divorce, for marriage annulment and for most interspousal claims where the spouses reside in Greece or last resided together there (Art. 39 CCiv.P). Further, there is jurisdiction when at least one spouse is a Greek national or was such a national at the time of marriage but lost it by reason of it (Art. 612 CCiv.P). These jurisdictions are not exclusive. On the negative side, there is no such divorce, etc. jurisdiction, with a minor exception, if at the time of the action both spouses are foreign nationals and their national laws do not recognize the jurisdiction of the Greek courts (Art. 611 I CCiv.P). Lastly, prorogation is not available. Judgments and orders on these matters are recognized and enforced in Greece under the general rules of Article 323 CCiv.P. As regards, however, a divorce decree obtained ex parte, it would appear that Article 780 CCiv.P additionally requires that the foreign authority chose, and had jurisdiction under, the law applicable under the Greek conflicts rules. Finally, recognition and enforcement may be denied on the basis of opposition to the public order of Greece, e.g. in the case of a Moslem unilateral repudium.14 Reference should also be made to Regulation 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses15 which applies throughout the European Union. First, the Regulation lists the following as the only available jurisdictional bases in another member state for actions for marriage dissolution and the related parental care matters against a habitual resident in or a national of a member state, except Denmark: (a) the current or last common habitual residence of the spouses or of the defendant with some variations, 13. 14. 15.

MP (Thessaloniki) 6839/1994, Harm. 49 (1995) 508–509. CA (Athens) 10719/1995, Hell.Dni 38 (1997) 638. OJ L 160/19–36, 2000.

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or (b) the common nationality (or domicile for the United Kingdom or Ireland) of the spouses. However, other states where assets are located may issue temporary protection orders. Second, all related decisions and decrees are enforceable in the other states without re-examination of jurisdiction or of the content. However, the blocks of manifest opposition to public order, prevention of effective defense and inconsistency with prior judgments or decrees on the same subject matters remain available. Third, this does not cover issues such as alimony, fault, property rights, etc. Fourth, when there is no jurisdiction under the Regulation, the Member States may apply their own jurisdictional and recognition rules. 2.

Parents-Children

(a)

Relationship

The relationship between parents and children born in wedlock is governed, in order of priority, by the law of (a) their last common nationality; (b) their last common habitual residence; or (c) the nationality of the child (Art. 18 CC). This continues even after the marriage has been dissolved. Whether a child is born in wedlock is determined by the law applicable to the personal relations of the mother and the claimed husband at birth or at the prior time of dissolution of their marriage (Art. 17 CC). As concerns the relationship between a mother or a father and a child born out of wedlock, it is governed, in order of priority, by the law of their common nationality, common habitual residence or nationality of the respective parent (Arts 19–20 CC). The prior issue of the recognition of fatherhood is regulated specially by the substantive common rules of the 1975 Council of Europe Convention on the Legal Status of Children Born out of Wedlock which has been ratified by Greece (Law 1702/1987, GG A 86) and thus prevails. It is to be noted that an out-of-wedlock child of a Greek father does not acquire Greek nationality until its recognition, and thus there is no ‘common nationality’ until then. The relationship between the parents themselves is subject to the law of their last, during pregnancy, common nationality, habitual residence, or residence in that order (Art. 21 CC). The parent-child relationship includes issues such as name, parental care and custody, support and maintenance, property management and control, marriage consent, discipline, and determination of place of residence. (b)

Legitimation and Adoption

The legitimation of a child (a) by subsequent marriage is governed by the law applicable to the personal relations of the spouses at marriage and (b) by public act, is subject to the then national law of the father or such law at his death (Art. 22 CC). Greece has also ratified, with reservations, the 1970 Rome Convention on Legitimation by Marriage of the International Committee of Civil Status (ratified by Law 1657/1986, GG A 184), which facilitates this process of recognition of legitimations which take place abroad.

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The substantive requirements for adoption, including judicial or other approval, and its dissolution or revocation are governed as to each party by his national law (Art. 23, as amended by Law 2447/1996; see also AP 1787/1988).16 When Greek law is applicable, it appears that certain provisions of the law are interpreted not to extend to alien parents, e.g., the prohibitions against adoption by a person who (a) has children of his own; (b) is less than 50 years old; (c) is the parent of the adoptee out of wedlock; or (d) has already other adopted children. Other prohibitions, however, are not so limited, such as the ones against adoption by a second parent while the first is still living, by or of a spouse without the consent of the other spouse and between persons having an age difference of more than 18 years. The formal requirements come within the lenient rule of Article 11. The relationship between adoptive parent and child, not including inheritance rights, is governed, in order of priority, by the law of (a) their last common nationality during adoption; (b) their last common habitual residence during adoption; or (c) the nationality of the parent or the law governing the personal relationship of the spouses at the time of adoption. Law 2447/1996 also has added, for interstate adoptions involving foreign habitual residents, a number of requirements concerning the need for certification by social services and the consent requirements. It further provides that Greek law applies to the adoption of children of foreign parents abandoned in Greece. (c)

Jurisdiction, Recognition, and Enforcement

As concerns the jurisdiction of the Greek courts, Articles 614 and 622 CCiv. P extend it to most issues of the parent-child relationship, in or out of wedlock, including recognition of paternity, legitimation, adoption, etc. plus related support, if either the father or the mother or the child is a Greek citizen. For parental care and communication disputes, however, the general rule of domicile of the defendant applies (Art. 681B CCiv.P), unless it can be joined to the other types. Foreign judgments and decrees relating to all these matters are recognized and enforced under the general rules contained in Articles 323 and 905 CCiv.P. There is disagreement, however, as to whether ex parte orders should meet the requirements of Article 780 CCiv.P. In addition, there is a European Union dimension on these jurisdictional and recognition-enforcement matters. Starting with the European Union, the parental care and custody of children, but only in proceedings of marriage dissolution, is governed by Regulation 1347/2000 (discussed above, under 1 (d)). The Regulation applies the same jurisdictional bases as for the main action, but limited to the forum where the child also habitually resides. If the child does not reside there, it suffices if it so resides in another member state provided, however, in the latter instance that one of the parents is exercising parental care and custody and the international jurisdiction of the court has been accepted by the parents and is consistent with the interests of the child. The Regulation should be applied 16.

EEN 56 (1989) 855–856.

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consistently with the requirements of the 1980 Hague Convention on the Civil Aspects of International Abduction of Children, (discussed below, under (d)). The resulting judgments and orders are entitled to recognition and enforcement throughout the European Union, except when contrary to the local public order, when interested parties were not properly notified, when the child was not heard or when they are inconsistent with subsequent valid ones. In addition, Greece has ratified the European Union Convention for the Simplification of Procedures for Claiming Support and Maintenance of 1990 (Law 2750/1999, GG A 243), which accelerates the process of enforcement of related orders. (d)

International Aspects

Greece also has now ratified by Laws 2102/1992 (GG A 193) and 2104/1992 (GG A 195), respectively, the Hague Convention on the Civil Aspects of the International Abduction of Children (1980) and the Luxembourg Convention on the Recognition and Enforcement of Judgments with Respect to the Custody of Children (1980) which deserve special attention. Beginning with the Hague Convention, its aims are the return of a child under 16, which has been illegally removed from the state of its legal habitual residence or is detained away from there, back there, and the restoration of communication with the child. Every state is required to designate a Central Authority to coordinate the needed measures. For Greece, it is the Ministry of Justice acting through the local authorities of the Legal Council of the State which petition the court or the administrative authorities in the area where the child is to be found. Such action is to be ordered only if the removal etc. was illegal, i.e. in violation of the custody-parental responsibility rights of the claimant (even shared ones), which rights were being in fact exercised and derive from the law or a judgment or an administrative order or a private agreement under the law. These include the conflicts rules of the state of the child’s habitual residence before the removal or the detention. The whole process is to be handled expeditiously and with minimal costs for the applicant who may start with or also have recourse to the Central Authority of his own or any member state. It is to be noted that the authorities are not to re-examine the substance of the custody matter and they may delay or refuse the return only if the child itself objects or there are good reasons to fear that it will suffer serious adverse consequences in the country of return. The Luxembourg Convention, which also provides for a Central Authority, the same for Greece, is more limited in that it requires the existence of a court order on custody which is enforceable in the state of origination. Further, while it does not provide for a de novo examination of the custody issue, it does allow for a consideration of various factors which may justify refusing to order the return of the child. Due to these reasons and in view of the fact that it has been ratified by more states, it is the Hague Convention that is more commonly used.17 It is to 17.

See CA (Thessaloniki) 3662/1996, Hell.Dni 38 (1997) 854–857; 998/1997, Harm. 51 (1997) 935–937; 1957/1997, Harm. 51 (1997) 1490–1495; MP (Kos) 1201/2001, Harm. 57 (2003) 1117–1120.

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be noted that extensive and up to date information about the Hague Convention is available at . Also, a quite useful ‘Guide to Good Practice’ has been issued by the Hague Conference. Finally, reference should be made to the Council of Europe Convention on the Exercise of Children’s Rights, ratified in Greece by Law 2502/1997 (GG A 103), which maximizes the role of the children under 18 themselves to participate in the related decisions affecting them. Reference should also be made to the two older ratified general Hague Conventions of 1973 on the law applicable to maintenance obligations (ratified by Law 3137/2003, GG A 90) and the recognition and enforcement of decisions relating to maintenance obligations (ratified by Law 3171/2003, GG A 192) and their provisions pro tanto prevail over the related Greek rules. Further, Greece has signed but not ratified the Hague Conventions dealing more specifically with the law applicable to child maintenance (1956) and the recognition and enforcement of decisions of child support and maintenance (1958). It should be noted that Greece is not a party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Care and Measures for the Protection of Children of 1996 which focuses on the authority of the state of the habitual residence of the child to protect its person and property according to its own or another law to which the child is more closely connected. Finally, it should be kept overall in mind that the following international conventions relating to matters of family law, some of which have been discussed above, have been ratified by Greece: (a) New York 1956 (pursuit abroad of claims for support and maintenance); (b) Rome 1961 (competence to receive petitions for recognition of children born out of wedlock); (c) Brussels 1962 (proof of the legitimacy of natural children with respect to the mother); (d) Strasbourg 1967 (adoption of minors); (e) Rome 1970 (legitimation of children by marriage); (f) Paris 1974 (international family book); and (g) Strasbourg 1975 (personal status of children born without marriage). The provisions of these conventions should be consulted to ascertain the degree to which the Greek rules have been superseded in particular contexts. E.

DESCENT AND DISTRIBUTION

According to Article 28 CC, descent and distribution, testate or intestate, as to all property, movables and immovables, is governed by the law of the decedent’s nationality at death (lex hereditatis). In cases of multiple nationalities, the Greek one is preferred, otherwise the one of the closest connection (Art. 31 CC). The reach of this law is quite comprehensive, extending to contracts for the distribution of assets by an ascendant to his descendents (νέμηση ανιόντος, nemissi aniondos) as well as to forced heirship rights. However, as to the latter, Law 1738/1987 provides that Greek citizens who lived outside Greece for at least 25 consecutive years before their death are not bound by the forced heirship rules as concerns property located abroad. Certain issues escape the lex hereditatis, or go beyond it, either because they are subject to the general choice rules applicable to all juridical

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acts, or because they are characterized as belonging to another branch of the law (e.g. property rights of the spouse), or for reasons of validation. As regards testaments, capacity to make or revoke a will is subject to the national law of the testator at execution or death, whichever will uphold it. The form of a will is subject to the law of the testator’s nationality at execution or death or of the place of execution, whichever will uphold it (Art. 11 CC).18 In addition, under Article 1 of the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions of 1961, to which Greece is a party (Law 1325/1983, GG A 16), five other connectors toward validation are added: the domicile or habitual residence of the testator at either execution or death and the location of immovables. The validity of the revocation of a will as to form is decided in the same manner (Art. 2 of the Convention). The method of acquisition of property rights in the estate assets is governed by the lex rei sitae as is the issue, according to one view, of to whom property escheats in the absence of heirs. Gifts causa mortis are treated, according to the prevailing view, as contracts and are allocated to the lex contractus except as concerns the effect it has on the size of the estate. The validity of a joint will or of an inheritance contract is treated as a matter of substance rather than form and it is subject potentially to opposition to the Greek public order. The Totten Trust, a form available in New York, whereby money is deposited in a bank in trust for another person, has been characterized as not involving an inheritance agreement and as not contrary to the Greek public order.19 The special Greek institution, modeled after German law, of a ‘certificate of inheritance’ (see Ch. 10, Section II F) which certifies that a certain person is an heir or legatee of an estate is generally treated as having only probative or, at the utmost, procedural function and, therefore, its issuance and acceptability appears subject to the lex fori. The probate proceedings are generally subject to the lex fori. The Greek courts have no jurisdiction on inheritance disputes for the property of a Greek decedent who is neither a domiciliary nor a habitual resident of Greece even if some assets are located in Greece.20 However, they may issue a certificate of inheritance for local assets.21 F.

LEGAL ENTITIES, CORPORATIONS

A single provision in Article 10 CC calls for the application of the law of the ‘seat’ of a legal entity, broadly defined, to questions of its ‘legal capacity’. This is interpreted to make such law the ‘personal law’ of the entity which governs not only matters of formation, capacity, representation, management, publicity, 18. CA (Athens) 6599/1990, Hell.Dni 32 (1991) 825–829. 19. AP 1286/1977, NoB 26 (1978) 1046–1047. 20. AP 583/1995, EEN 63 (1996) 508; AP 1245/1996, Hell.Dni 38 (1997) 1794; AP 123/2000, NoB 49 (2001) 230–231. 21. MP (Thessaloniki) 15734/1994, Harm. 51 (1997) 400–401.

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consolidation, dissolution and the like but also the entire gamut of its internal affairs. Seat is only one and is located at the situs of management, and, according to the majority view, it must be real and it will not suffice for it to be merely stated in the charter.22 Limited deviations from the ‘real seat’ connecting factor appear in certain statutes. In particular, Article 1 I of Law 791/1978 provides that the existence and legal capacity of maritime corporations formed abroad which own Greek-flag ships, or are established in Greece, are subject to the law of their registered seat regardless of the actual situs of management.23 This has been extended by Law 2234/1994 to companies owning foreign-flag ships if the ships are operated by subsidiaries or branches of such corporations. The intention to allow this exception from the real seat rule in a limited way and only to matters of formation and capacity to act has been demonstrated by two important cases brought before Areios Pagos. Indeed, in AP (full bench) 2/199924 it was held that the Greek courts continue to have international jurisdiction even over these maritime corporations incorporated abroad if they have their real seat in Greece.25 The point is further underscored in AP (full bench) 2/2003,26 where the Court refused to extend the exception from the real seat rule beyond the international shipping field, as in pare materia, to foreign corporations established in Greece under Law 89/1967 to conduct offshore operations (see also Chapter 12, above). Some bilateral treaties grant to foreign corporations ‘national treatment’, i.e. equal to that of domestic entities for certain purposes. For example, under Article 24 III 2 of the US-Greece Treaty of Friendship, Commerce and Navigation of 1951, ratified by Law 2893/1954 (GG A 149), companies formed under the law of either party are treated as its nationals and their juridical status is to be recognized in the territory of the other party, apparently regardless of their real seat. Similar provisions are found in the treaties with the United Kingdom, Spain and Argentina. This national treatment, however, is limited to the external affairs field: for example, access to courts and enforcement of arbitration agreements (Art. 6), acquisition and protection of property (Arts 5, 7 and 9), industrial property rights (Art. 10), engaging in business (Arts 12 and 13), financial transactions and taxes (Arts 15 and 16), etc. and should not affect the application of the real seat rule to the internal corporate affairs. 22. An early key case is AP (full bench) 461/1978, NoB 27 (1979) 211, followed consistently since by, e.g., AP 1082/1990, Hell.Dni 32 (1991) 794–795; 178/1991, Hell.Dni 32 (1991) 1240; 711/1991, Hell.Dni 33 (1992) 122–123, 218/1996, DEE 2 (1996) 805–806; 261/2001, ENautil. D 29 (2001) 202. 23. AP 949/1990, NoB 38 (1990) 1048–1050; PP (Piraeus) 943/1990, ENautil.D 18 (1990) 418–419. 24. NoB 47 (1999) 1113–1114. 25. See also CA (Piraeus) 161/2003, Sur.Com.L 9 (2003) 503–508, (comments by K. Pampoukis); 159/2004, ENautil.D 32 (2004) 184–190; and 403/2004, ibid. 177–183, stressing that the exception applied only to matters of formation and capacity to act. 26. EEmp.D 54 (2003) 60–64 and Sur.Com.L 9 (2003) 117–123, (with comments by K. Pampoukis).

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An interesting question refers to what law applies to the transfer of the corporate seat to another state. Certainly the law of the state of the transfer must allow it and the law of the state where the transfer is to take place must accept it. Some Greek writers, however, require that the transfer in its entirety must be permitted under both laws applied cumulatively. An important consequence of the neutrality and bilaterality of the seat rule is that foreign corporations formed and operating under the law of their seat are automatically recognized in Greece. Article 16 in the Maridakis project of the Civil Code would have imposed a recognition requirement by presidential decree. It should be pointed out, however, that recognition of personality is not always enough for purposes of establishment and that special legislation may impose on certain foreign entities additional requirements. Foreign corporations must follow a procedure with the Ministry of Commerce similar to qualification to do business. Foreign close corporations are subject to an even more complex qualification process and, in addition, must show that the country of their seat grants the same rights to Greek corporations (reciprocity). Special ‘doing business’ requirements apply to banking, insurance, brokering, leasing, factoring and certain other kinds of legal entities. Finally, placing the corporate real seat in Greece does not guarantee acquisition of the Greek nationality in the context of some special public order statutes. On this issue, see Law 1892/1990 relating to immovables located near border regions and CA (Thessaloniki) 566/2005.27 Finally, certain developments at the European Union level now affect significantly this field. Indeed, under Article 48 (formerly 58) of the EC Treaty, with respect to establishment, entities having their registered seat, central administration or principal place of business in a member state are entitled to national treatment throughout the Union. In a series of important judgments,28 the European Court of Justice has interpreted this provision literally, thus enabling a corporation, even if intending to operate solely in another member state, to be formed in a member state with which it has not other connection. See, also, the judgment on Mark & Spencer,29 for the holding that the tax rules of the state of the parent should not burden establishment of subsidiaries in other states. The connection of this matter to establishment suggests that this liberal regime applies only to the external corporate activities, not to the internal corporate affairs. However, these cases undermined the authority of the state of the real seat to apply its rules regarding minimum capitalization and the personal liability of directors to pseudoforeign corporations. Further, the need to avoid glaring abuses is mitigated by the continuing approximation of corporate law norms within the Union. Some authors in Greece are forecasting the eventual general demise of the real seat rule and there 27. 28.

DEE 11 (2005) 821–823. Centros Ltd v. Erhvervs-og Selskabsstyrelsen, Case No. C-212/97 [1999] ECR I-1459; Überseering BV v. Nordic Construction Company Baumanagement GmbH (NCC), Case No. C-208/00 [2002] ECR I-9919; and Kamer van Koophandel en Fabrieken voor Amsterdam v. Inspire Art Ltd, Case No. C-167/01 [2003] ECR I-10155. 29. Marks & Spencer plc v. David Halsey (Her Majesty’s Inspector of Taxes), Case No. C-446/03 [2005] ECR I-10837.

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is some uncertainty in the cases. Contrast AP 335/200130 with AP 261/2001.31 As concerns transfer of the corporate seat to another member state, Regulation 14 has not as yet been finalized within the Union. Consequently, the position taken in the case of Daily Mail,32 that the state of formation may impose conditions on a corporation transferring its seat to another member state appears to hold. Finally, it should be kept in mind that now multi-state businesses may take advantage of the European Company Regulation which bypasses national law. Whether one is a ‘merchant’ for purposes of the applicability of the special provisions of commercial law is determined by the law of his principal place of business. G.

MARITIME LAW

The Code of Private Maritime Law contains a couple of interesting conflicts provisions. The law of the flag applies to property rights on a ship (Art. 9 CPr. ML). This includes conveyances, liens and privileges. There is a difference of opinion on whether the priority of secured creditors on arrest is governed by the law of the flag or the lex fori.33 The law of the flag of the helping ship governs questions relating to compensation for salvage (Art. 252 CPr.ML). The bulk of the labor law provisions regulating employment contracts of Greek nationals on Greek-flag ships are governed by Greek law. This is substantially extended also to aliens on condition of reciprocity (Art. 83 CPr.ML). The other aspects of such contracts are subject to the general conflicts rules for contracts.34 As regards employment of Greek nationals on foreign-flag ships, the courts tend to favor Greek law as the proper law especially when the flag is of convenience and the owners have major Greek connections. Article 2 of Law Decree 3899/1958 provides that a preferred mortgage on a Greek-flag ship may be executed either in Greece in notarial form or abroad according to the form either of Greek law or of the law of the place of execution. The liability of the ship-owner is specifically subjected to the law of the flag (Art. 77 VI(a) of Law 1892/1990). However, it has been held35 that the liability of the ship-owner to third parties for supplies to the ship ordered by the charterer is ex lege and subject to the Greek conflicts rules (by analogy to Rome Convention Art. 4 and Art. 25 CC) calling for the law of the state of the closest connection. See, also, AP 19/1995.36 The courts have been developing special rules for maritime torts on the high seas. Thus, the lex fori applies to collisions of ships on the high seas registered under different flags except in situations where the substantive rules of certain Brussels 30. Chr.ID 1 (2001) 616–618. 31. See above, ftn. 22. 32. The Queen v. H.M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc, Case No. C-81/87 [1988] ECR 5483. 33. AP 284/1989, Hell.Dni 31 (1990) 1011. 34. AP 346/1989, ENautil.D 18 (1990) 156–158. 35. AP 384/2005, DEE 11 (2005) 1079–1081. 36. NoB 44 (1996) 412–414.

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Conventions are applicable. Torts on board a ship are subjected to the law of the flag. In this latter case, if the ship is in the territorial waters of a state the views are divided on whether the law of the flag supersedes the lex loci delicti where both the flag and the claimant are foreign.37 Truck, railway, and air transport is governed to a considerable extent by uniform rules through certain international conventions. H.

GENERAL MATTERS

1.

Renvoi

Article 32 of the Civil Code contains a general rejection of renvoi, as does Article 15 of the Rome Convention (see above, under B 1(b)). By way of exception, however, under the Geneva Conventions discussed above (ibid.) the capacity of a person to be bound by a promissory note, check or bill of exchange is governed by his whole national law including its choice-of-law component. Further, the Hague Convention on Civil Aspects of the International Abduction of Children, (discussed above, under D 2 (d)), does refer to the whole law applicable under its provisions. It should also not be forgotten that reference to the foreign conflicts rules may be made in deciding the preliminary questions. 2.

Public Policy

Foreign law is not applied if it contravenes morality or, generally, public policy (Art. 33 CC). This exception, which is narrower than the public order of Article 3 CC, the latter referring to all the rules of jus cogens, in practice is invoked rarely and only in concreto, if elements of the dispute itself are connected to Greece, and almost never to preliminary questions. While it may operate both negatively and positively, whether and to what extent the rest of the foreign law still continues to govern or is replaced by the lex fori is unclear. 3.

Statutes of Limitation

It is well settled that they are considered substantive rather than procedural and, therefore, are subject to the lex causae. See, e.g., AP 384/2005,38 AP 305/199039 and AP 492/1979.40 4.

Nationality, Habitual Residence, Domicile

The acquisition and loss of nationality by natural persons, which is one of the major connecting factors in Greek conflicts law, is in principle determined by the 37. AP 998/1982, NoB 31 (1983) 1003 and AP 1145/2003, Chr.ID 4 (2004) 55–56. 38. DEE 11 (2005) 1079–1081. 39. Hell.Dni 32 (1991) 112–113. 40. NoB 27 (1979) 1481–1482.

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law of each country whose nationality is at issue (Art. 29 CC). Where a person has more than one nationality, the one selected for Greek choice-of-law purposes is (a) the Greek one or, in its absence, (b) the one with which the person is more closely connected (Art. 31 CC). An alien is entitled to the same rights as a national under the law applicable pursuant to the Greek choice-of-law rules (Art. 4 CC). In the event that a person has no nationality, Article 30 CC provides that its place is taken first, by habitual residence and second, by simple residence. It is noteworthy that this language was amended in 1983 to replace ‘domicile’ with ‘habitual residence’ to bring it into line with the prevailing view that ‘domicile’ in the international sense means habitual residence and to conform it to the modern trend as demonstrated especially in the Hague Conventions. 5.

Proof of Foreign Law

Greek courts are more receptive to the application of foreign law than their US counterparts and quite adept at handling it. Article 337 of the Code of Civil Procedure abandoned the old and much criticized treatment of foreign law as ‘fact’ by providing that the court must take it into account ex officio and without proof. This does not preclude, however, an order for or offer of proof by the parties in aid of discovering its content.41 In addition, Article 559 CCiv.P treats an error about foreign law the same way as one about domestic law for purposes of reviewability on final appeal to Areios Pagos. Under the prevailing conflicts theories, the court is required to apply foreign law when called for by a choice-of-law rule proprio motu and regardless of whether any of the litigants so requests. Whether the new system will eliminate the practice of presuming explicitly or implicitly that, in the absence of proof or knowledge to the contrary, foreign law is identical to domestic law is not yet clear. A valuable source of information on the content of foreign law is the Hellenic Institute of International and Foreign Law which is extensively consulted by the courts. It is this same Institute that Greece has designated as the organ for the receipt and processing of requests for information on Greek law under the European Convention on Information on Foreign Law of 1968 and its Additional Protocol of 1978, ratified by Laws 593/1977 (GG A 156) and 1709/1987 (GG A 108) respectively. II.

INTERNATIONAL JURISDICTION OF THE GREEK COURTS

Primarily under French influence, the nationality of either the defendant or the plaintiff was the principal general jurisdictional basis for suits in Greek courts before World War II. The Introductory Law to the Civil Code of 1946 in Articles 7(1) and 126 went the other way by establishing instead the principle of equal jurisdictional treatment of litigants regardless of nationality. This is also consistent with the 41. AP 825/1989, NoB 38 (1990) 1436–1437.

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‘national treatment’ obligation in some treaties. The courts, however, continued to subject Greek citizens as such to their general jurisdiction. Article 3 I of the new Code of Civil Procedure repeated the equality language even more emphatically and it is now accepted that the Greek nationality of any party standing alone and regardless of domicile or any other special jurisdictional basis does not generally suffice. In any event, in certain matters involving the family relationship, the nationality of either the father, the mother or the child constitutes an independent jurisdictional basis (Arts 614, 622 CCiv.P). Putting nationality aside, the jurisdiction of Greek courts is based generally on domicile and consists of the sum total of the amenabilities to suit or bases of jurisdiction in the various contexts. For these amenabilities, see Ch. 16, Section III D, E. Lack of jurisdiction is decided ex officio by the court and leads to a dismissal, not a transfer, of the action. An express or tacit prorogation42 can expand the international jurisdiction of the Greek courts. Conversely, the Greek courts will usually give effect to clauses choosing a foreign forum43 except e.g. in matters of immovables situated in Greece, ex parte and interim proceedings or where the eventual judgments of the foreign court will not be recognizable in Greece. The fundamental differences between the Anglo-American and Continental concepts of personal jurisdiction also affect the Greek courts, especially in that neither service of process nor doing business within the state are sufficient or even relevant general bases of their international jurisdiction. However, see Ch. 16, Section III E on the forum negotii. For admiralty, the Code of Private Maritime Law contains certain specific jurisdictional provisions. Disputes relating to co-ownership of Greek-flag ships are to be brought before the court of the port where the ship is registered (forum domicilii navis). Claims arising from collisions may be pursued before the Greek courts if (a) the defendant is domiciled or resides in Greece; (b) the ship carries the Greek flag; (c) the collision took place in Greek territorial waters; or (d) the ship was sequestered in Greece (forum arresti). Foreign sovereign and diplomatic immunity is recognized in accordance to the Vienna Conventions on Diplomatic Relations of 1961 and on Consular Relations of 1963 to which Greece is a party (see respectively Law Decree 503/1970, GG A 108, and Law 90/1975, GG A 150 ratifying the above Conventions). Foreign states are immune to suit for sovereign acts (iure imperii) but not for commercial, contractual or tortious acts (iure gestionis). Immunity is also extended to heads of state and diplomats and their families. Consular immunities are more limited in that they cover only acts performed in the course of duty and do not extend to families. In general, there is no immunity with respect to claims to immovables (with certain exceptions for embassy and diplomatic residence grounds), descent and distribution matters and the exercise of an occupation or a trade in Greece. Furthermore, when a foreign state brings an action, it is deemed to waive its immunity for related counterclaims. 42. AP 706/2003, ENautil.D 31 (2003) 181–182. 43. CA (Piraeus) 12/1994, Arch.N 45 (1994) 570–571.

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The Greek courts may address to or receive from foreign authorities letters rogatory and render international judicial assistance (δικαστική αρωγή, dikastiki arogi, Arts 5 and 6 CCiv.P), e.g. the examination of witnesses, where this is not contrary to public policy or a treaty obligation. They may also seek the aid of the Greek consular authorities abroad. Greece is also a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965, ratified by Law 1334/1983 (GG A 31). Greece is now bound by Regulation 44/2001 which basically adopted the provisions of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968 as amended.44 The Regulation, which applies to disputes which have some international element, adopts domicile, to be defined by each state according to its own rules, as the central jurisdictional basis. It also sanctions the availability of certain other bases, mostly concurrently, and precludes certain exorbitant ones (e.g. quasi-in-rem general jurisdiction). Further, it does contain a number of exclusive bases which even trump domicile, such as real property interests, corporate personality and internal affairs, industrial property registrations, etc. Except for the exclusive bases, the Regulation applies only to actions against domiciliaries of the European Union so that, for non-domiciliaries, each member is free to use its own jurisdictional rules. III.

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS, ORDERS, AND ARBITRAL AWARDS

Foreign judgments, including orders, and arbitral awards may be either only ‘recognized’, that is given res judicata effect in domestic proceedings, or also rendered directly enforceable by being invested with a local exequatur. The Code of Civil Procedure contains detailed provisions on both these matters which, contrary to prior law, treat nationals and aliens and domiciliaries and non-domiciliaries equally and non-discriminatorily. Furthermore, no reciprocity is required; and recognition and enforcement take place without re-examination of the merits. Article 323 of the Code of Civil Procedure enunciates five requirements for the recognition of the judgments and orders of a foreign civil court rendered in contentious, that is adversary, proceedings. First, the court must have had international jurisdiction according to Greek law, which is tested under the rules regulating the jurisdiction of the Greek courts themselves discussed earlier in this Chapter. It suffices for such jurisdiction to have been concurrent. That the court also complied with its own rules of international and domestic jurisdiction under narrow circumstances may be testable not in itself but within the confines of the second and third requirements. Second, the judgment or order must have the claimed res judicata effect under the law of the country of origin. For example, whether mutuality of estoppel is required is first determined by the law of such country. Since, however, 44.

See Ch. 16, Section III G and ftns 6, 7.

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the scope of res judicata recognition is generally determined by the country of enforcement, this means that the judgment or order will be given the lesser of the origin or the recognition effects. Third, the losing party must have been given an opportunity to defend not less favorable than that available to nationals of the country of origin. Fourth, the judgment or order must not be inconsistent with a Greek judgment or order on the same matter binding the same parties. Apparently, this extends not only to subsequent but also to prior Greek judgments or orders in deviation from the usual rule that the later in time prevails. Fifth, the judgment or order should not be contrary to morality and generally to Greek public policy. In this context, public policy is less demanding than in choice of law and it is possible for a court, especially where foreign parties and events are involved and there are no significant local effects, to recognize a judgment or order applying a rule of law that it would have refused to apply in the first place on public policy grounds. Most of the cases where the public policy exception was raised involved divorce or other family-related decrees. Recently, a foreign judgment invalidating a holographic will on the ground that the place of execution had not been indicated, was refused recognition.45 The authority of judgments or orders rendered ex parte (voluntary or noncontentious jurisdiction) is recognized more easily: it is sufficient that the foreign court had jurisdiction under the applicable substantive law and that the decision is not contrary to morality and generally to Greek public policy. However, the court also must have chosen the applicable law consistently with the Greek conflicts rules (Art. 780 CCiv.P). Greece should be commended because, unlike some other European countries, does not require, except for decisions rendered ex parte, that the court of origin applied the law called for by the Greek conflicts rules. While the recognition itself takes place automatically and without the institution of any proceedings, in practice a claimant may encounter difficulties in persuading particular authorities, especially within the executive branch, that the judgment or order satisfies the criteria of the law and should support the requested action. To remove this uncertainty, a claimant presumably may institute a declaratory judgment proceeding seeking verification of the recognition. The extent of the res judicata effect is decided under Greek law as matter of procedure. While recognition is often sufficient for declaratory or constitutive foreign judgments or orders, when they order the payment of money or the doing of an act, their enforceability must also be obtained. Article 905 CCiv.P, which deals with enforceable instruments, provides for an ex parte special exequatur proceeding before the one-member district court of the defendant’s domicile or residence or, in their absence, of Athens. The defendant need not be summoned or notified but he usually is to enable the court to pass on all defenses as early as possible. If the defendant appears, he may challenge only matters related to the exequatur but he may not raise substantive issues, such as set-off, payment, etc. The latter can be asserted against the decision itself. For an exequatur to be obtained, it must be shown that the foreign document is judicially enforceable (not necessarily final or 45. AP 88/1991, Hell.Dni 32 (1991) 1236–1237.

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non-appealable) under the law of the country of origin and not contrary to morality or generally to Greek public policy. In addition, the recognition requirements of Article 323 CCiv.P must be met. Furthermore, an ambiguous paragraph IV added later to article 905 CCiv.P provides that the exequatur procedure also applies to the recognition of the res judicata effect of foreign decisions relating to personal status. It is not as yet settled whether this investiture with an exequatur is mandatorily required or merely permissive and at the choice of the claimant. What accompanies the exequatur application is the document itself and evidence of its enforceability at the country of origin and of the notification of or participation by the defendant there. The court may not alter, interpret or correct the document but only order its enforcement in whole or in part. A special legislative rule denies enforcement in Greece, except as required by international convention, of judgments against ship-owners for pollution of the sea to the extent that they exceed the amount awardable under Greek law (Art. 77 VI(b) of Law 1892/1990). An arbitral award that is foreign, that is rendered abroad or under foreign arbitration law, is recognized as having res judicata effect if: (a) the arbitration agreement was valid under the applicable law; (b) the subject matter was arbitrable under Greek law; (c) the award is not subject to review (but need not be enforceable) in the country of origin; (d) the loser was not deprived of the right to defend; (e) the award is not inconsistent with a judgment of a Greek court on the same matter among the same parties having res judicata effect; and (f) the award is not contrary to morality and generally to Greek public policy (Art. 903 CCiv.P). In addition, such awards may be enforced through the exequatur proceedings (Art. 906 CCiv.P). It should be mentioned here that Greece has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (ratified by Law Decree 4220/1961, GG A 173) and its more lenient provisions apply to commercial disputes, as defined by Greek law, arbitrated in a state party to the Convention. Greece is also party to the Protocol on arbitration clauses (Geneva, 24 September 1923) and the 1927 Geneva Convention on the execution of foreign arbitral awards (Geneva, September 26, 1927), ratified respectively by Law Decree 4/1926 and Law 5013/1931, as well as to the International Center for Settlement of Investment Disputes (ICSID) Convention of 1965 on the settlement of investment disputes between states and the nationals of other states (ratified by Necessity Law 608/1968, GG A 263). Finally, a Greek court will normally stay a case if the same issue between the same parties is in the process of being adjudicated or arbitrated abroad. Greece is a party to many bilateral and some multilateral conventions dealing with matters of recognition and enforcement of judgments. These conventions prevail over the Code of Civil Procedure but the matter is not important in practice since there are no significant differences. A conflict may, for instance, arise under some of the conventions in situations where a Greek court rejects a judgment because of inconsistency with a prior Greek judgment. Quite importantly, Greece is now subject to Regulation 44/2001, discussed above, which also extends to recognition and enforcement of judicial decisions in civil and commercial disputes and prevails pro tanto over any inconsistent

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domestic law as concerns judgments and orders from Member States. This means that Greece and the other members must recognize and enforce judgments and orders rendered according to the Regulation or to national jurisdictional rules when applicable. The provisions of the Regulation are generally similar to those under Greek law except that it is not necessary that the court of rendition had international jurisdiction under the Greek rules. Greece has now ratified (Law 2460/1997, GG A 22) the related Lugano Convention of 1988, which contains provisions similar to those of the Regulation, and extends to Iceland, Norway and Switzerland, formerly members of the European Free Trade Association. BIBLIOGRAPHY (In Greek unless otherwise indicated) Two best-known and standard reference works on conflicts law are: G. Maridakis, Private International Law, vol. I (2nd edn, Athens, 1967), vol. II (2nd edn, Athens, 1968), and D. Evrigenis, Private International Law (Thessaloniki, 1973). See, also, S. Kalogeropoulos-Stratis, Private International Law (2nd edn, Athens, 1962); E. Krispis, Private International Law, vol. I (Athens, 1967–68), vol. II (Athens, 1970); S. Vrellis, Private International Law (2nd edn, Athens, 2001); and A. Grammaticaki-Alexiou, Z. Papassiopi-Passia, and E. Vassilakakis, Private International Law (3rd edn, Athens-Thessaloniki, 2002). Among the many monographs and articles in the field, special mention should be made to: A.

CHOICE OF LAW

1.

Contracts

A. Grammaticaki-Alexiou, The Law Applicable to Employment Contracts Under the Community Convention of Private International Law of 1980 (Thessaloniki, 1984). P. Kozyris, ‘Some Observations on the Sphere of Applicability of the Vienna Convention on Contracts for the International Sale of Goods’ in Deloukas Festschrift (Athens, 1989) [in English]. G. Nikolaidis, The International Sale of Goods Under the Treaty of Vienna (Athens, 2000). H. Pampoukis, The Lex Mercatoria as the Law Applicable in International Contracts (Athens, 1996). Z. Papassiopi-Passia, New Trends in Private International Law in the Area of Contractual Obligations (Thessaloniki, 1985).

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Z. Papassiopi-Passia, The Community Convention of Rome of 1980 on the Law Applicable to Contractual Obligations as It Applies in Greece (Athens, 1991). Z. Papassiopi-Passia, ‘The Application of the Rome Convention of 1980 and Choice of Law to Contractual Obligations by the Greek Courts’, EEEur.D 23 (2003) 541–573. Symposium, The Rome Convention of 1980 on the Law Applicable to Contractual Obligations: Ten Years of Application by the Greek Courts (Center for International and European Economic Law, Thessaloniki, 2003). J. Voulgaris, ‘The Rome Convention of 1980 Compared to the Civil Code’, NoB 50 (1992) 1289–1326. J. Voulgaris, ‘Autonomy of the Will in Private International Law’, EEEur.D 14 (1994) 871–891. For the special jurisdictional and choice-of-law problems of contracts concluded and torts committed through the Internet, see L. Alexandridou, The Law of Electronic Commerce (Athens-Thessaloniki, 2004) and further references therein. 2.

Torts

A. Grammaticaki-Alexiou, ‘Torts: Time for Revising Article 26 CC’, EEEur.D 14 (1994) 1031–1053. E. Kounougeri-Manoledaki, Tort Liability in Automobile Accidents in View of the Modern Trends in Private International Law (Thessaloniki, 1974). D. Stamatiadis, ‘Problems Relating to the Applicable Law for International Torts’, EEN 65 (1998) 229–248. A. Tenekidou-Frangopoulou, The Delict in Private International Law (Athens, 1956). 3.

Family Law and Descent and Distribution

H. Apalagaki, ‘The Provisions of Regulation 2201/2003 on the International Abduction of Children’, Harm. 59 (2005) 1015–1024. E. Bendermacher-Geroussis, Divorce and Separation in Greek Private International Law (Athens, 1960). J. Deliyannis, ‘Choice of Law in Spousal Relations’, EEur.Koin. 16 (1986) 227–261. J. Deliyannis, ‘Private International Law Problems in the Greek Law of Marriage Celebration’, EEEur.D 14 (1994) 793–834. A. Grammaticaki-Alexiou, ‘Problems of Applicable Law Especially in Proceedings for the Issuance of an Inheritance Certificate’, Harm. 30 (1976) 527–540. A. Grammaticaki-Alexiou, Private International Law. Questions of Family Law (Thessaloniki, 1983). A. Grammaticaki-Alexiou, The International Abduction of Children According to the Hague Convention of 1980 (Thessaloniki, 1996).

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Z. Papassiopi-Passia, Problems of Applicable Law to the Relations Between Parents and Children Born Without Marriage (Thessaloniki, 1991). Z. Papassiopi-Passia, ‘International Jurisdiction, Applicable Law and Problems of Intertemporal Conflicts Law for the Parental Care of a Child Born Out of Wedlock’, Harm. 47 (1993) 867–872. Z. Papassiopi-Passia, ‘Characteristic Features of Contemporary Family Private International Law’, EEEur.D 14 (1994) 1055–1098. Z. Papassiopi-Passia, Applicable Law on Divorce in Greek and International Conflicts Contexts (Thessaloniki, 1997). N. Paraskevopoulos, The Property Relations of Spouses Under Domestic and Private International Law (Athens, 1984). H. Tagaras, The Contribution of the Community Legal Order to the Unification of International Family Law (Athens, 2002). E. Vassilakakis, Testate Succession Under Greek Private International Law (Thessaloniki, 1994). E. Vassilakakis, ‘Certificate of Inheritance Relating to an Immovable Located in Greece and Owned by a French Decedent’, Harm. 51 (1997) 455–461. E. Vassilakakis, ‘The New Legislative Regulation of International Adoptions’, Harm. 51 (1997) 1313–1320. J. Voulgaris, ‘Topics Relating to the Greek International Family Law Especially Following the Amendmemts of Law 2447/1996’, NoB 48 (2000) 401–416. 4.

Legal Entities

P. Bernitsas, Investment Securities, Stocks, Bonds and Similar Items in Private International Law (Athens, 1978). E. Kaldellis, ‘Freedom of Establishment of Companies in the Post-Centros Ltd Era: How Much of a Freedom in European Community Law?’, RHDI 55 (2002) 411–440 [in English]. P. Kozyris, ‘Jurisdiction and Applicable Law to Internal Corporate Relations: Proposals for Greece After the Centros and Überseering Decisions’, Sur.Com.L 9 (2003) 617–638. E. Krispis, Legal Personsy, Especially Corporations, in Private International Law (Athens, 1950). S. Menglidou, The Establishment of Foreign Companies in Greece (Thessaloniki, 1971). H. Pampoukis, Legal Entities and Especially Companies in the Conflict of Laws (Athens-Komotini, 2002). K. Pampoukis, ‘Recognition of Foreign Companies Especially Within the European Community’, EEEur.D 14 (1994) 183–230. Z. Papassiopi-Passia, E. Vassilakakis and S. Mouratidou-Zahariadou, ‘La condition juridique des personnes morales étrangères en Grèce’, RHDI 54 (2001) 135–188 [in French]. D. Papasteriou, The Seat of Legal Persons in Private Law (Thessaloniki, 1979).

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S. Vrellis, ‘Le droit applicable aux sociétés en Grèce’, Koinodikaion 3 (1997) 1– 22 [in French]. See also D. Evrigenis, Elements of the Law of International Transactions and International Economic Organizations, vol. I (Thessaloniki, 1976). 5.

Maritime Law

K. Kardoulis, The Flag of a Ship as Connecting Factor in Private International Law (Athens, 1970). D. Kokkini-Iatridou, The Charter in Private International Law (AthensThessaloniki, 1962). P. Vallindas, Private International Law in the Greek Code of Private Maritime Law (Athens, 1959). 6.

Other

A. Gasis and E. Maggiorou, ‘Documents Acknowledged According to American Law by a Notary Public and Their Validity Under Greek Law’, RHDI 42–43 (1989–1990) 391–401 [in English]. A. Grammaticaki-Alexiou, The Domicile of Natural Persons in Private International Law (Thessaloniki, 1980). A. Grammaticaki-Alexiou, ‘The Status of Cultural Property in Greek Private International Law’, RHDI 47 (1994) 139–160 [in English]. A. Grammaticaki-Alexiou, The International Movement of Cultural Goods and Private International Law (Thessaloniki, 2002). K. Ioannou, ‘Freedom of Establishment, Public Security and Border Regions’, EEur.Koin. 3 (1982) 160–167. E. Krispis, The Form of Juridical Acts in Private International Law (Athens, 1960). E. Krispis, The Monetary Obligation in Private International Law (Athens, 1964). S. Metallinos, ‘Applicable Law to Unjust Enrichment’, NoB 17 (1969) 348–355. S. Metallinos, Assignment of Claims in Private International Law (Athens, 1971). V. Papadimas, The Preliminary Question in Private International Law (Thessaloniki, 1981). Z. Papassiopi-Passia, Problems of Applicable Law in Assignment by Operation of Law. The Case of Insurer Subrogation (Thessaloniki, 1981). Z. Papassiopi-Passia, Rules of Immediate Application and Substantive Rules (Thessaloniki, 1989). Z. Papassiopi-Passia, ‘The Applicable Law on Divorce and the Ordre Public Reservation in Greek Conflict of Laws’, 60 LaLR (2000) 1227–1239 [in English].

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D. Stamatiadis, ‘Party Autonomy in International Property Law’, Harm. 51 (1997) 188–204. J. Voulgaris, ‘The Private International Law of the Civil Code and the Influences During its Formation’, Krit.Epith. 3 (1996) 183–202. S. Vrellis, Trademarks in Private International Law (Athens, 1972). S. Vrellis, Fraud in the Law in Private International Law (Athens, 1979). S. Vrellis, The Guaranty in Private International Law (Athens, 1983). Reference should also be made to a series of publications of the Hellenic Society of Private International Law which concentrate on related themes. As of now, the following issues have appeared: A. Antapassis, The Law Applicable to Accidents Involving Seamen (Athens, 1988). A. Antapassis, The Law Applicable to Maritime Privileges (Athens, 1989). E. Perakis, International Effects of Bankruptcy Declared in Greece (Athens, 1990). Symposium, International Adoptions (Athens, 1992). D. Tsikrikas, The Public Order in Private International Law (Athens, 1992). H. Tsouka, Choice of Forum Clauses in Private International Law (Athens, 1990). S. Vrellis, The Hague Conventions on Support and Maintenance Obligations (Athens, 1988). S. Vrellis, Problems of Private International Law in Employment Contracts (Athens, 1989). B.

INTERNATIONAL JURISDICTION AND FOREIGN JUDGMENTS

The standard work here is G. Maridakis, The Execution of Foreign Judgments (3rd edn, Athens, 1970). See also Ast. Georgiadis, ‘Execution and Recognition of Foreign Judgments’, Harm. 28 (1974) 599–612; S. Metallinos, ‘The Recognition of Foreign Ex Parte Judgments’, D 9 (1978) 344–360; Eranion [Festschrift] for G. Maridakis, vols I–IV (Athens, 1963–1964, 1972, various authors). The work of K.D. Kerameus, G. Kremlis and H. Tagaras, The Brussels Convention on International Jurisdiction and the Enforcement of Judgments as it Applies in Greece (Athens-Komotini, 1989) and Supplement (Athens-Komotini, 1996) consists of an article-by-article commentary on the Convention, including references to the Lugano Convention of 1988. See also: H. Apalagaki, ‘Conditions and Procedure for the Recognition and Enforcement Under the Brussels Convention’, D 31 (2000) 760–775. K. Beis, ‘International Jurisdiction of Greek Courts for Temporary and Permanent Judicial Relief’, D 28 (1997) 17–28.

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K. Fountedaki, ‘The Special Jurisdictional Basis of the Branch Office’ in Liber Amicorum K.D. Kerameus, N.Th. Nikas (ed.) (Athens-Thessaloniki, 2000) 71–107. A. Foustoukos, ‘International Arbitration and the Foreign Arbitral Award’, NoB 40 (1992) 253–264. A. Kaissis, International Commercial Arbitration and the Brussels Convention (Thessaloniki, 1995). A. Kaissis, Aspects of Public Order in the Recognition and Enforcement of Foreign Administrative and Arbitral Decisions (Thessaloniki, 2003). K.D. Kerameus, ‘International Jurisdiction in Maritime Disputes in Europe and Especially Greece’, NoB 31 (1983) 28–38. K.D. Kerameus, ‘Recognition of Foreign Ex Parte Judgments’, Hell.Dni 39 (1998) 527–530. K. Makridou, ‘The Determination of International Jurisdiction on Cases about Companies and Legal Persons (Regulation Brussels I)’, D 34 (2003) 276–290. E. Moustaira, ‘Enforcement and Private International Law’, D 29 (1998) 481–487. N. Nikas, European Procedural International Law (Athens-Thessaloniki, 2002). E. Sahpekidou, ‘Prorogation Agreements Under Article 17 of the Brussels Convention’ in Liber Amicorum K.D. Kerameus, N.Th. Nikas (ed.) (AthensThessaloniki, 2000) 215–232. E. Vassilakakis, ‘The Exequatur of Foreign Arbitral Awards’, Sur.Com.L 3 (1997) 291–326. Reference should also be made to the general treatises on Civil Procedure by Professors K. Beis, K.D. Kerameus, G. Mitsopoulos and G. Rammos and to the older writings of Professor C. Fragistas. In English, a useful work, although out of date, is A. Ehrenzweig, C. Fragistas and A. Yiannopoulos, American-Greek Private International Law (New York, 1957). See also D. Evrigenis and K.D. Kerameus, Report on the Accession of the Hellenic Republic to the Community Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, OJ C 298/1–27, 1986; P. Massouridis, ‘The Enforcement of Foreign Judgments in Greece’, RHDI 23 (1970) 186–224; and G. Nicoletopoulos, ‘Private International Law in the New Greek Civil Code’, Tul.LR 23 (1949) 452–477. On arbitration, see S. Kousoulis, ‘Actual Problems of International Arbitration – The Greek Law in Comparison with the UNCITRAL Model Law’, RHDI 49 (1996) 479–500. In French, see G. Maridakis, ‘Les principaux traits de la récente modification hellénique touchant le droit international privé’, Recueil des Cours 85 (1954) 111–237, and D. KokkiniIatridou, Introduction au droit hellénique (Utrecht, 1969). In German, see K.D. Kerameus, ‘Rechtsmittelfestigkeit und Vollstreckung von auslandischen Entscheidungen’ in Multitudo Legum Ius Unum: Essays in Honor of W. Wengler, vol. II (Berlin, 1973) 383–395; ibid., ‘Griechenland’ in Internationaler Rechtsverkehr

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in Zivil- und Handelssachen, R. Geimer and R.A. Schütze (eds), vol. III, fasc. 13 (Munich, 1990) 1–14. Finally, attention should be called to the (a) Revue hellénique de droit international, now in its 59th year, which often contains articles mostly in English and in French dealing with conflicts and has published summaries of Greek conflicts and jurisdiction cases in English (RHDI 42–43 (1989–90) 377–390; 44 (1991) 325– 340; 46 (1993) 297–310; 48 (1995) 323–350; 49 (1996) 229–240; 52 (1999) 535– 575; and 54 (2001) 559–604), prepared by A. Grammaticaki-Alexiou, V. Kourtis, A. Metallinos, H. Pamboukis, I. Thoma and H. Tsouka; and (b) Koinodikaion (suspended since 2003), published in various languages and focusing exclusively on private international law.

Chapter 18

Nationality and the Law of Aliens Zoe Papassiopi-Passia*

I.

LAW OF NATIONALITY

A.

INTRODUCTION

The current Code of Greek Nationality (CGN), adopted by Law 3284/2004 that entered into force on November 10, 2004, has codified in a unified text all the provisions pertaining to the acquisition and loss of Greek nationality. It brought no radical changes, since most significant modifications had already occurred in the aftermath of Law 1438/1984 fully implementing the constitutional principle of gender equality and regulating nationality matters arising from the adoption of civil marriage by virtue of Law 1250/1982 (see Ch. 9, Section II C). The fundamental principle of Greek nationality is the ius sanguinis. Indeed, it dominates the provisions of the CGN, especially through the concept of ‘homogeneis’ (ομογενείς), i.e. ethnic Greeks (aliens of Greek descent who also have Greek ‘consciousness’; see below, under B (e)). Besides the ius sanguinis principle, another main feature of nationality law is ‘plurinationality’ mostly due to the

* Professor of Law, University of Thessaloniki. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 409–430. © 2008, Kluwer Law International BV, The Netherlands.

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application of the ius sanguinis principle. Plurinationality is not simply tolerated by the legislator; quite often it seems to be compulsory. Thus, for example, an alien who acquires Greek nationality through naturalization retains his original nationality, since Greek legislation does not require him to lose it in order to acquire the Greek nationality. In addition to the acceptance of plurinationality, the implementation of the ius sanguinis principle, and the subsequent more favorable treatment of ethnic Greeks/aliens in matters regarding the acquisition of Greek nationality, it is also worth noting that the legislation contains many provisions that led – at least until 2001 – to a certain number of intertemporal conflicts of nationality laws. Law 2910/2001 reduced such instances to a minimum, whereas transitional provisions remedied certain serious problems caused in the past to the parties interested. Articles 14, 21, 22 and 23 CGN seek to regulate similar transitional nationality matters. Thus, on a strictly legal basis, one might say that the third characteristic of nationality law is the creation of a number of intertemporal conflicts of nationality laws, due to the amendments and modifications to the previous CGN of 1955 up to the enactment of Law 2910/2001. Since the repeal of the latter, all nationality matters are regulated by the provisions of the current CGN. B.

ACQUISITION

Greek nationality is acquired in the following ways: (a) By birth: (i) to a Greek father (Art. 1 I CGN) in wedlock or to a Greek mother, irrespective of the nationality of the other parent or of the place of birth; or (ii) on Greek territory (Art. 1 II) only in cases when the child, upon birth, does not acquire the nationality of any other state. This is the only case that the CGN recognizes and applies the ius soli principle, in order to avoid statelessness. (b) By recognition (Art. 2 CGN): Greek nationality can also be acquired by recognition. Voluntary or judicial recognition of the paternity of a minor child born out of wedlock (see Ch. 9, Section IV C) to a Greek father and an alien mother results in the attribution of Greek nationality to that child from the date of recognition. Whether or not the child already has the nationality of his mother is irrelevant. (c) By adoption (Art. 3 CGN): a minor alien adopted by a Greek citizen becomes Greek as of the time of the adoption. (d) By joining the armed forces (Art. 4 CGN): enrolment as volunteer in the Greek armed forces constitutes an ipso iure means of acquiring the Greek nationality, although reserved only for aliens of Greek descent. Greek nationality is also acquired by the minor children of the person enrolled as of the moment the parent gives the military oath replacing the oath of the Greek citizen in naturalization procedures. (e) By naturalization (Arts 5–12 CGN): naturalization is the principal process by which an alien acquires Greek nationality. A distinction is made

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between aliens of Greek descent (ομογενείς, homogeneis) and aliens of non-Greek descent (αλλογενείς, allogeneis). An alien not of Greek nationality is, however, of Greek descent because of the Greek language and religion in most of the cases, common traditions, common Greek ancestry, and most important of all, common Greek national consciousness. This final element may be evidenced by the facts set forth in the memorandum of the appropriate authority. By contrast, an alien not of Greek descent is one who does not fulfill these conditions, being both of foreign ethnicity and of foreign nationality. The naturalization requirements for an applicant of either of the above categories of aliens are the following: (i) attainment of at least 18 years of age; (ii) absence of a deportation order; and (iii) absence of final and conclusive imprisonment of longer than one year or, regardless of the sentence, for the crimes described under Article 5 I(b) of Law 3284/2004. Additionally, a non-ethnic Greek is required: (i) to have legally resided in Greece for a total of ten years during the last 12 years preceding the submission of the naturalization application. For stateless persons and for political refugees this condition is cut down to half (Art. 5 II(a) CGN); and (ii) to have sufficient knowledge of the Greek language, Greek history and Greek culture in general. The condition of ten-year residence is not required of aliens of non-Greek descent if they have been born and continue to live in Greece, as well as of those residing in Greece for at least three years, having been married to a Greek citizen and having become parents of a Greek child (Art. 5 II(a) CGN). Anyone wishing to become a naturalized Greek must submit the necessary documents to the competent municipality or the village council together with an application addressed to the Minister of the Interior, Public Administration and Decentralization. The final decision rests with the latter and is published in the Government Gazette (Art. 8 CGN). The law provides for a special Naturalization Committee within the Ministry of Interior, Public Administration and Decentralization which evaluates, by means of an interview, the applicant’s personality. Since previous Law 2910/2001 a fee was for the first time established, as an additional condition, in order for the naturalization application to be considered. Payment of this fee is not necessary for aliens of Greek descent. The process of naturalization is completed by the taking of the oath before the secretary general of the regional authority. Naturalization is extended automatically to all minor children of the naturalized person (Art. 11 CGN). However, the spouse of a naturalized person and any children of legal age must apply for naturalization in their own right. By virtue of Article 10 CGN, naturalization of ethnic Greeks living abroad is regulated separately. The commitment of the Greek legislator to the principle of ius sanguinis is very apparent in this provision. Thus, according to Article 10 I CGN, the naturalization application of an ethnic Greek living abroad is submitted to the Greek consul of his place of domicile, who transmits it to the Ministry of Interior, Public Administration and Decentralization together with his report, which indispensably includes any necessary information corroborating the

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applicant’s quality as an ethnic Greek. Following examination of the details in the alien’s file and the opinion of the Minister of Public Order on matters concerning public order and security, the competent department of the Ministry of Interior, Public Administration and Decentralization recommends the acceptance or rejection of the naturalization application. The final decision rests with the Minister. As with other naturalized persons, the process is completed by the taking of oath before the secretary general of the regional authority. (f) By honorary naturalization (Art. 13 CGN): an alien who has offered outstanding services to Greece or whose naturalization may serve a special interest of the country may be naturalized – becoming thus binational – without fulfilling the normal conditions of naturalization such as application and residency in the country. (g) By admission as novices or monks in Aghion Oros (Άγιον Όρος; Mount Athos): Article 105 I Const. provides for the conferral of Greek nationality on persons leading a monastic life on Mount Athos. An alien male automatically and without any further formalities acquires Greek nationality from the moment he receives his tonsure and his name is written in the Athonian Register as a novice or brother. (h) By being an ethnic Greek originating mainly from the former USSR countries: special laws and regulations also provide for the conferral of Greek nationality to certain categories of foreign nationals of Greek ancestry. This applies in particular to ethnic Greeks from the Black Sea states of the former Soviet Union as well as from Egypt and other locations of Greeks of the Diaspora. The main legal texts to that effect are Laws 2130/1993, 2790/2000, 2910/2001 (Art. 76 VI) and Article 15 CGN. In all the above cases, foreign nationals of Greek origin and descent become plurinational persons. Regarding the acquisition of Greek nationality by the repatriating Greeks originating from the former USSR countries (παλιννοστούντες, palinnostountes; literal meaning: ‘persons returning home’; ethnic Greeks), the Greek State made efforts to assimilate them to Greeks by birth. Initially, Law 2130/1993 conferred Greek nationality to certain categories of persons living in countries of the former Soviet Union who, according to the Treaties of Lausanne (1923)1 and Ankara (1930),2 had acquired the nationality of the country where they were living at the time. In particular, Article 23 I thereof, by retroactively repealing the provisions of Articles 11 and 12 of Law 2280/1940, enabled a large category of aliens of Pontic Greek descent (i.e. ethnic Greeks originating from countries of the former USSR) to be recognized as Greeks by birth, i.e. as never having lost the Greek nationality. These persons were considered Greeks along with their spouses and children. Truly speaking, these ethnic Pontic Greeks are not ‘returning home’, i.e. in Greece, as they had neither ever lived in nor ever abandoned the Greek territory. They are just considered Greeks by birth due to their ancestors who lived during 1. 2.

Ratified by the Law Decree of October 25, 1923, GG A 238. Ratified by Law 4793/1930, GG A 226.

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the time of the Ottoman Empire and the years before World War I, residing in countries (territories) where Greek populations had been living since antiquity. The only partial settlement of cases of repatriating ethnic Greeks originating from the former USSR by Law 2130/1993 created a number of problems regarding the regularization of the personal and legal status of repatriating ethnic Greeks. Thus, the Greek legislator intervened anew through Law 2790/2000 and regulated matters of nationality and rehabilitation of those repatriating ethnic Greeks who did not fall under the regulatory scope of the Treaties of Lausanne and Ankara and who either had come to Greece in recent years and already lived in Greece or were living in the Republics of the former Soviet Union until the date the above Law was published, i.e. until February 16, 2000 (the timeframe was later extended several times). Subsequently, the Greek legislator amended Law 2790/2000, by means of Law 2910/2001 and particularly Article 76 thereof, especially regarding the issue of the investigation of the applicant’s Greek origin by the special committees set up at regional authorities, so as to investigate not only the applicant’s Greek origin but also examine whether he was an alien of Greek descent. The minor children of ‘palinnostountes’ who acquired the Greek nationality through the above-mentioned provisions also become Greek citizens from the time their parent takes the oath, and are registered, like the applicant himself, to the register of males or the municipal rolls upon decision of the secretary general of the regional authority (Art. 15 IV CGN). Following the enactment of the CGN, all nationality matters regarding ethnic Greeks originating from former Soviet Union countries are regulated by Article 15 thereof.

C.

LOSS OF NATIONALITY

Loss of Greek nationality results from any of the situations listed below: (a) Acquisition of a foreign nationality (Art. 16 CGN): Greek nationality may be lost by a person who becomes a naturalized citizen of another country, i.e. a Greek citizen who through his own express application acquires the nationality of another state may lose his Greek nationality. Loss of nationality results only by special permission of the Minister of the Interior, Public Administration and Decentralization and for extraordinary reasons after consultation with the Council on Nationality. Additionally, a Greek who joins the civil service of another country, if his position requires him to acquire the nationality of that state, loses the Greek nationality only subject to the prior permission. In such cases, loss of Greek nationality is purely personal and affects only the individual in question, having no effect whatsoever on the nationality of his children. Greek nationality may also be rejected by a Greek enjoying more than one nationality, again by permission. In the cases mentioned above, permission is never granted if the applicant is subject to a military obligation or is prosecuted for a felony or misdemeanor.

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Zoe Papassiopi-Passia (b) Loss due to adoption by an alien (Art. 20 CGN): a Greek who has not attained the age of majority and is adopted by a foreign national may, upon application by the adopting parent, lose the Greek nationality, if, additionally, he acquires the nationality of the foreign national’s state. In such cases, however, all relevant circumstances are carefully considered before granting permission. (c) Divestiture (Art. 17): a Greek who (i) has accepted a public service office of a foreign state and, ignoring an invitation to cease holding that office within a given time due to its inconsistency with the interests of the country, issued by the Minister of the Interior, Public Administration and Decentralization addressed to him, or who (ii) while living abroad has committed acts beneficial to a foreign state but incompatible with the quality of a Greek citizen and contrary to the interests of Greece, may be divested of Greek nationality. Such divestiture is pronounced by a decision of the Minister of the Interior, Public Administration and Decentralization following a reasoned and concurring opinion of the Nationality Council. Divestiture is of individual character and does not influence the nationality of the spouse or children, minor or adult, of the divested person. (d) Renunciation (Art. 18 CGN): renunciation of the Greek nationality is permitted provided the interested party is an adult, he declares that a genuine bond between him and the country has ceased to exist and that he resides abroad. A declaration before the Greek consul of the interested party’s place of residence followed by the permission process described above are required. (e) Loss of the Greek nationality by the children by the person naturalized (Art. 19): the minor children of a naturalized Greek who thereby became Greek citizens may renounce the Greek nationality if they: (i) are of foreign ethnicity; (ii) retain the nationality that they had at the time of naturalization of their parent; and (iii) declare to the mayor or the chairman of the village council or the Greek consular authority of their place of domicile or residence their wish in this regard, within one year from the date they attain majority.

D.

RECOVERY OF NATIONALITY

The CGN also regulates certain ad hoc cases of Greek nationality recovery by persons who had lost it in the past due to special circumstances. For example, when prior to the entry into force of Law 1438/1984 by which the principle of equality was introduced in nationality matters: (a) a Greek woman who married an alien lost her Greek nationality; or (b) a child born to a Greek mother automatically lost his Greek nationality from the moment of his recognition or legitimation by his alien father. These cases are regulated by Articles 22–23 CGN, which allow the above persons to recover their nationality upon declaration before the secretary general of the regional authority or the Greek consular authority of their place of domicile or residence.

Nationality and the Law of Aliens E.

OTHER NATIONALITY ISSUES

1.

Marriage

415

Marriage no longer entails the acquisition or loss of Greek nationality (Art. 30 CGN). Since May 8, 1984 (i.e. the date of entry into force of Law 1438/1984), and in contrast to the situation prior to that date, an alien female who marries a Greek does not acquire Greek nationality automatically. Nor does a Greek woman who marries a foreign national automatically lose her Greek nationality, as was the case before that date. Consequently, the alien female who marries a Greek retains the nationality she had before her marriage and can acquire Greek nationality only by naturalization. Similarly, a Greek woman marrying a foreign national retains her Greek nationality. Indeed, it is virtually impossible to lose it, regardless of the fact that she may acquire the nationality of her alien husband by marriage. It should also be noted that, following the introduction of Law 1250/1982, a marriage may be religious or civil (see Ch. 9, Section II C). 2.

Procedural Issues

The Minister of the Interior, Public Administration and Decentralization is the sole authority competent to rule on any matter as to nationality whether it concerns jurisdiction, evidence or any other issue (Arts 25 I, 26 CGN). Certificates of nationality may be supplied by the mayor or the president of the community in which the applicant is registered (Art. 27 I CGN) but not by the Greek consular authorities. The secretary general of the regional authority may also issue documents determining the acquisition or non-acquisition of Greek nationality by persons requesting that their nationality be determined according to the provisions of the CGN, as well as to the provisions previously in force and to international conventions and covenants (Art. 25 II CGN). In such cases, it is not necessary to apply to the Ministry. Such documents are principally given to aliens of Greek descent originating from the Black Sea provinces of Turkey, the former Soviet Union, etc., whose ancestors or themselves had lived in those territories and who have recently settled in Greece. These documents identify such persons as being of Greek descent and of Greek nationality and permit their registration in a municipality or community in Greece, a procedure falling outside the naturalization process. II.

THE LAW OF ALIENS

A.

INTRODUCTION

The current law on the status of aliens is Law 3386/2005, in force since January 1, 2006, replacing Law 2910/2001, covering entry, residence and social integration of third-country nationals into the Greek territory. The notion of third-country nationals also includes stateless persons, but not Greeks holding multiple

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nationalities. Excluded are EU citizens,3 as well as recognized political refugees and alien asylum seekers. The latter are regulated by the framework set up by the 1951 Geneva Convention on the Legal Status of Refugees (ratified by Law Decree 3989/1959, GG A 201), the 1967 New York Protocol on the same subject (ratified by Necessity Law 389/1968, GG A 125), as well as the relevant provisions of Articles 24 and 25 of Law 1975/1991, and the presidential decrees and ministerial decisions adopted for their implementation. B.

ENTRY AND DENIAL THEREOF

To enter into Greece, a third-country national must have a visa (Art. 6). There are two types of visas: the short-stay visa (Schengen4 visa) and the long-term residence visa (national visa). In cases where no visa is required – for example, because the alien in question holds the nationality of a country for which Greece has waived the visa requirement – an alien is allowed to enter and stay in Greece for a period of three consecutive months, or for partial stays that add up to a total of three months over a period of six months, starting from the date of his first entry. A third-country national may be denied entry into the Greek territory (Art. 8), if it is justifiably ascertained that: (a) the alien in question is registered in the List of Undesirable Aliens (personae non gratae; see below, G 3); (b) his entry may constitute a risk to public order and security or public health; (c) he comes to Greece with the purpose of remaining in the country for a reason for which a special visa is required; (d) he does not possess the necessary documents and does not have the necessary financial means to support himself in Greece; and (e) his passport, or other travel document, does not ensure his return to his country of origin or country of nationality. Any third-country national entering or leaving Greece illegally may be sentenced to a prison term of at least three months and a fine of at least EUR 1,500 (Art. 83). However, it is standard practice that the prosecutor will order immediate refoulement of the alien to his country of origin or country of nationality instead of imprisonment. In the meantime, the alien remains in custody (albeit for a period of no more than three months), during the initiation of the procedure for administrative deportation.

3. Within the meaning of Article 17 I of the EC Treaty. 4. The Schengen framework is comprised of: (a) the Agreement of June 14, 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders; (b) the Convention of June 19, 1990 implementing the Schengen Agreement of June 14, 1985; and (c) various Agreements on the accession of other member-states to the Schengen Agreement and its implementing Convention; Greece ratified the above by virtue of Law 2514/1997, GG A 140.

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RESIDENCE PERMITS

A third-country national coming to Greece for a short stay with or without a visa does not need a residence permit (Art. 70). In all other cases, an alien coming to Greece must have a special visa and must also obtain the corresponding residence permit. The application is submitted to the municipality or community of the applicant’s place of domicile or residence before his visa expires, or within a period of two months before the expiration of his previous residence permit. The residence permit is issued by the secretary general of the regional authority, after review of the supporting documents and verification that he: (a) is not a risk to public order and security or public health; (b) has paid the required fee; (c) possesses full health insurance coverage in Greece; and (d) has appeared for an interview before the Immigration Committee (Arts 10–12). The initial residence permit has a one-year duration and can be subsequently renewed for periods of two years (Art. 12 VI), until the alien in question meets the conditions for a residence permit of either indefinite or long-term duration (Arts 67–89). There are seven types of residence permits. For the first time, based on the relevant European Union Directives,5 Law 3386/2005 establishes a ‘Residence Card’ and a ‘Permanent Residence Card’ for the family members of a Greek national or a EU citizen. Specifically, residence permits fall into the following categories: 1.

Residence Permit for Employment (Arts 14–23)

A third-country national may be invited to work as an employee for a specific employer, who must invite him to provide a specific type of labor and kind of work in Greece following the appropriate legal procedure. Selection of the particular alien is done by means of a special list of names available in every Greek consulate with the purpose of covering the country’s needs in workforce (Art. 14). Having obtained the special visa that refers to employment, such alien can enter Greece. Before the visa expires, the alien must apply to his municipality or community of domicile requesting a residence permit for salaried employment, also producing the contract agreed upon with the employer. The alien may change employer during the initial yearly residence permit but may not change specialty; after the first year, he may change the residence permit for salaried employment into a residence permit for the provision of services or work but not for an independent economic activity until a three-year period has lapsed since the initial residence permit (Art. 12 V). Other types of residence permits for employment include those granted for: (a) seasonal employment (Art. 16); (b) moving from a company located in a third country to provide services (Art. 19); (c) members of artistic ensembles (Art. 21); 5. Namely Council Directive 2003/86 of September 22, 2003 on the right to family reunification, OJ L 251/12–18, 2003 and Council Directive 2003/109 of November 25, 2003 concerning the status of third-country nationals who are long-term residents. OJ L 16/44–53, 2004.

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(d) intellectual creators (Art. 22); (e) members of foreign archaeology schools (Art. 23); (f) athletes and coaches (Art. 20); (g) moving from a company located in a Member State of the European Union or the European Economic Area in order to provide services (Art. 18); and (h) members of the board of directors, administrators and company personnel (Art. 17). When entering the country, persons falling under the last four categories may be accompanied by family members, whereas in all other cases the alien employee is allowed to be joined by members of his family only after a lapse of a two-year period of legal residence and subject to proving that he has a stable, regular and sufficient income to support these persons (Art. 53). All the above residence permits are issued by decision of the secretary general of the regional authority except for those under (e) and (h) that are issued by the Minister of the Interior, Public Administration and Decentralization. 2.

Other Residence Permits

Besides employment, there are also residence permits for exercising an independent economic activity (Arts 24–25) and for investment purposes (Arts 26–27), which have a two-year duration; an alien who intends to develop an investment activity in Greece may also be accompanied by family members (Art. 27 V). Another category of residence permits includes those issued for specific categories, such as: students (Arts 28–35), financially independent persons (Art. 36), foreign press correspondents (Art. 38), priests of known religions (Art. 39) and persons who intend to study at the Athonias Ecclesiastic Academy of Mount Athos (Art. 40) or to stay for a certain time in Mount Athos in order to become acquainted with monastic life (Art. 41), as well as leaders of organized tourist groups (Art. 42) or persons who are going to participate as researchers in special programs (Art. 43). All the above residence permits are issued by decision of the secretary general of the regional authority, except for those under Article 26, which are issued by decision of the Minister of the Interior, Public Administration and Decentralization. 3.

Residence Permits Granted for Exceptional Reasons (Arts 44–45)

These residence permits are granted for humanitarian reasons or for reasons of public interest. In the former case, they are issued by joint decision of the Minister of Interior and the Minister of Employment and Social Protection and regard: (a) victims of labor accidents; (b) victims of criminal acts confirmed by court decision, for the duration of their therapy; (c) persons living in institutions; (d) underage persons whose custody has been assigned to Greek families or families legally residing in Greece; (e) persons suffering from serious health problems; and (f) any other case that does not fall under the abovementioned categories, provided that the alien must remain in the country for therapy. In this latter case, the residence permit that is issued by the Minister of Interior, has a six-month duration and may not be renewed for the same reason, but only on the grounds provided by Law 3386/2005 on the status of third-country nationals.

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The residence permit granted for reasons of public interest is issued by joint decision of the Minister of Interior and the Minister of Foreign Affairs, when there is a duly justified reason of public interest. Its duration is of one year; it may be renewed for an equal time period. Holders of such permit may also be accompanied by members of their family. 4.

Residence Permits Granted to Victims of Human Trafficking (Arts 46–52)

Following Directive 2004/81,6 Law 3386/2005 pays particular attention to the protection of victims of human trafficking. This is why it carefully regulates the granting of residence permits by the police authorities, public prosecution authorities, or social support organizations to third-country nationals who are considered to be possible victims of human trafficking. Initially, these persons are granted a ‘reflection period’ (of up to one month), so that they might escape the influence of operators of human trafficking rings and, if they so wish, subsequently collaborate with the authorities. During this period of time they cannot be deported, they are provided with access to healthcare and to sufficient means of subsistence, the necessary legal assistance, interpretation services, etc. Following expiration of the reflection period, and if the alien in question is willing to cooperate with the authorities, he is granted by priority, by decision of the Minister of Interior, a residence permit for one year that also entails an employment permit. The residence permit is not renewed and may be revoked when, inter alia, the alien beneficiary re-establishes contact with the operators of the human trafficking ring, or ceases to cooperate with the authorities, or if an irrevocable court decision is rendered relating to the prosecution/conviction of the operators of a human trafficking ring. In this latter case, it is possible that the victim of human trafficking be granted a residence permit by the secretary general of the regional authority for one of the other reasons provided by Law 3386/2005 on the status of third-country nationals. 5.

Residence Permits Granted for Family Reunification (Arts 53–60)

A third-country national legally residing in Greece for a period of at least two years may request the entry and residence in the country of his family members (i.e., spouse and their common underage children, natural or adopted, including any underage children of the spouse), provided that he proves to have a personal yearly income that is stable, regular and sufficient to support family needs. In case of polygamy, it is not possible for the alien to be joined by other wives and 6. Council Directive 2004/81 of April 29, 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261/19–23, 2004.

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children, besides the one and those already living with the alien in Greece. The permit is for a year and may be renewed, but it may also be revoked if it is ascertained that the above no longer live together or that the family relation was established with the sole purpose of contravening the law. Such family members may obtain their own residence permit in Greece, inter alia, when they come of age, or when the person who supported them dies, or a divorce is issued, or the married couple no longer lives together, if during the marriage violence was exerted against that particular family member. 6.

Residence Permits of Indefinite Duration (Art. 91 II)

A third-country national who has completed a continuous, legal, ten-year residence in Greece, at the time of entry into force of Law 3386/2005 (January 1, 2006), is entitled to a residence permit of indefinite duration, in accordance with the requirements of Law 2910/2001. This residence permit is granted by the secretary general of the regional authority. 7.

Residence Card for Family Members of a Greek National or a National of another European Union Country (Arts 61–64)

The secretary general of the regional authority grants a ‘Residence Card as member of the family of a Greek national or a national of an EU Member State’ to spouses and common children under the age of 21 (natural or adopted), as well as to the children of the alien spouse, regardless of age, provided that they are supported by the Greek or EU citizen and to their parents, as long as they too are supported by the Greek or EU citizen. The aim of this regulation is to facilitate the right of free movement of family members of a Greek national or a EU Member State national, in compliance with Directive 2004/38.7 No residence permit of a uniform format is granted, per Regulation 1030/2002,8 as in all other cases, but a ‘Residence Card’ is issued instead. Moreover, no health certificate is needed – as is the case with all other residence permits – unless there are serious indications of infectious or contagious diseases. A Residence Card may also be granted to the alien parents of underage Greek nationals by the secretary general of the regional authority (Art. 94). The Residence Card also entails a work permit and is valid for five years. It may be revoked if it is ascertained that the relevant legal requirements are no longer met, or if it is established by court decision that falsified documents or misleading 7. Directive 2004/38 of the European Parliament and of the Council of April 29, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158/77–123, 2004. 8. Regulation 1030/2002 of June 13, 2002 laying down a uniform format for residence permits for third-country nationals, OJ L 157/1–7, 2002.

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information were provided for its issuance, or that the marital or family partnership no longer exists. In the event that the Greek national or national of another EU Member State dies, or exerts violence against family members, or a divorce is issued, the members of his family acquire a personal right of residence. The above family members who have been legally residing in Greece for a continuous five-year period are entitled to a ‘Permanent Residence Card’, issued by the secretary general of the regional authority, which is automatically renewed every ten years and which carries an autonomous right of access to the labor market. The validity of the ‘Permanent Residence Card’ may only be affected by absences exceeding two years. D.

THE STATUS OF ALIENS WHO ARE LONG-TERM RESIDENTS OF GREECE (Arts 67–69)

A third-country national who is over 18 years old, and who has been living legally in Greece during the last five years prior to January 1, 2006 may acquire the status of long-term resident. This is a personal right that entails several privileges, since its beneficiary is protected against deportation, inter alia, and is also able to move freely through the other EU Member States for periods of time exceeding three months. Special Presidential Decree 150/2006 regulates the relevant matters, in compliance with Directive 2003/109.9 Besides being of age, the third-country national wishing to acquire the status of long-term resident is required to have stable and regular resources for himself and his family members, to have sufficient knowledge of the Greek language, as well as to be familiar with the essentials of Greek history and culture. The conditions and criteria under which such person acquires the status of long-term resident in Greece are defined by Law 2910/2001. Third-country nationals who have a residence permit for studying, those who are subject to the status of the Vienna Convention of 1961 on Diplomatic Relations (ratified by Law Decree 503/1970, GG A 108) as well, and those who have a residence permit which is by nature temporary (e.g., for seasonal employment, for moving from one company to another, etc.) are not eligible to acquire the above mentioned status. E.

SOCIAL INTEGRATION, RIGHTS, AND DUTIES THIRD-COUNTRY NATIONALS

OF

1.

Social Integration (Arts 65–66)

Law 3386/2005 introduces, for the first time, regulations that allow third-country nationals legally residing in the country a proportionally equal participation in 9.

Council Directive 2003/109 of November 25, 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44–53, 2004.

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the economic, social and cultural life of the country, implementing to this effect an integrated Action Plan. The prevention of all kinds of discrimination against third-country nationals who have been residing in the country legally and in a permanent way, as well as the application of the equal treatment principles to them are some of the main goals of the Action Plan that implements Law 3304/2004, in its turn integrating Directives 2000/4310 and 2000/78.11 It is hoped that, within the framework of the Action Plan, a series of subprojects soon to be adopted by the Ministry of Interior relating to providing assistance for Greek language-learning, integration of these aliens into the Greek labor market, and their active social participation, will improve the current situation and will actually result in the equal participation of aliens in the country’s life. 2.

Rights and Duties (Arts 71–73)

Third-country nationals legally residing in Greece have, in principle, all the rights stipulated in the international treaties ratified by Greece referring in general to the protection of every person, as well as those stipulated in the Constitution, which ensure the protection of a person’s fundamental rights. They thus have access to the judicial system as well as the right to appeal to authorities. They have the right to conduct transactions freely and the right to express their opinions, unless these lead to an overthrow of the current democratic regime, they may draft a will, participate as members in unions, associations and organizations, and even be members of their board of directors. In addition, Law 3386/2005 stipulates the possibility for third-country nationals to be insured by the relevant insurance organizations, and to enjoy the same insurance and social rights as Greek nationals, while minor aliens are subject to compulsory nine-year education (of 12 years in total). Those who graduate from secondary education have access to higher education on the same terms and conditions as Greek nationals. By way of derogation, aliens who do not have all the necessary supporting documents may also register in public schools (primary and secondary education), provided that their parents and/or themselves are political refugees or asylum seekers, that they originate from areas where an unruly situation prevails, or that the matter of the legalization of their residence in the country is still pending. Third-country nationals must report to the competent aliens and immigration authorities any change in their place of domicile, in their civil status (marriage, change of nationality, birth of a child, divorce), the loss of, or any modification to their passport, the loss of their residence permit, as well as any modification relating to the person of their employer and their kind of employment. They must also appear in person every time they submit the relevant application requesting a residence permit or its renewal and are not allowed to use proxies in these cases. 10.

Council Directive 2000/43 of June 29, 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22–26, 2000. 11. Council Directive 2000/78 of November 27, 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303/16–22, 2000.

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DUTIES OF CIVIL SERVANTS, THE ADMINISTRATION, EMPLOYERS, AND TRANSPORTERS (Arts 84–88)

Disciplinary and penal sanctions may be imposed upon civil servants who accept applications of aliens who cannot prove that they are legally residing in Greece. An exception is made when aliens are admitted into hospitals or other treatment centers in emergency cases, without possessing legal documents, or in case of underage children (Art. 84 I(b)). Another exception to this regulation is the case of third-country nationals illegally residing in Greece who happen to be detained, in which case they may appoint a lawyer as proxy who will represent them before the judicial authorities (Art. 84 II). Disciplinary and penal sanctions are equally imposed upon notaries drafting notarial deeds for third-country nationals who do not possess the necessary documents justifying their residence in Greece, unless a power of attorney is to be drafted for an attorney to represent such persons before a court of law (Art. 85). Administrative and penal sanctions are also imposed upon employers who illegally employ third-country nationals, while for those illegally transporting aliens who do not have a right of entry into Greece or another EU Member State the sanctions provided are strict, including the confiscation of the means of transport (Art. 88). G.

DEPORTATION

1.

Administrative Deportation (Arts 76–82)

Deportation may be ordered by a court of law, usually as a subsequent sentence (or a measure of security; see Ch. 20, Section II D 2), as regulated by Articles 74 and 99 PC. In addition, Law 3386/2005 provides for the possibility of deporting a third-country national who has been sentenced to a custodial penalty of at least one year, or who has been convicted, irrespective of the sentence, for a series of crimes, set out and listed in Article 76 I, when the court had not ordered the deportation. An alien who has violated the provisions of Law 3386/2005 on the status of third-country nationals (for example, by entering or exiting the country illegally, by failing to renew an expired residence permit, by changing his employer or kind of occupation without so reporting, etc.) shall also be deported. Naturally, he shall also be deported if his presence in the Greek territory is deemed to constitute a risk to public order and security or to public health. In the latter cases, if it is suspected that the third-country national might flee, a temporary detainment order is issued, pending the decision for deportation (which must be issued within three days). The deportation is ordered by decision of the police director, while the alien is granted a period of at least 48 hours to submit objections. During detainment, the alien may, parallel to the rights awarded under the Code of Administrative Procedure, submit objections to the decision relating to detainment before a judge of the administrative court of first instance. The third-country national may appeal against the deportation decision within a

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period of five days from notification thereof before the Minister of Public Order or to the body specifically appointed for this purpose. A deportation order may be suspended only by decision of the Minister of Public Order. 2.

Protection against Deportation (Art. 79)

Deportation is prohibited if the third country national is: (a) underage with parents or custodians residing in Greece; (b) the parent of an underage Greek; (c) older than 80 years; (d) a recognized political refugee or an asylum seeker; (e) a minor to whom reformatory sanctions have been imposed by decision of the juvenile courts; or finally (f) a pregnant woman, in which case deportation is forbidden for a period of six months after she has given birth. 3.

Undesirable Aliens (Art. 82)

The Ministry of Public Order maintains a List of Undesirable Aliens (personae non gratae) against whom a deportation order has been issued in Greece either by judicial or by administrative decision. The List also includes the names of those aliens whose presence has been found to constitute a risk to national public security or public order. When an alien is registered in the List, the duration of the registration therein is also specified (usually from three to five years), as well as its reason. A name may be deleted from the List earlier by special ministerial decision. In addition to such List, there is also a Common List of Undesirable Aliens of the Schengen Agreement that includes the names of all aliens in the corresponding national List. This means that there is a ‘double registration’, with all the negative consequences that this implies for the alien. For example, even a person who has not renewed his residence permit or who works illegally is registered in the (national) List as well as in the Common List of the Schengen Agreement. The law also provides for the immediate refoulement of an alien, especially where the illegal entry was noticed immediately or shortly after it occurred, but also following a longer period, since this cannot be easily ascertained at the time of arrest. However, refoulement is preferred over administrative deportation, precisely because the alien has no right of appeal. In refoulement an effort is made so that the alien is not sent back to a country where his life would be in danger. H.

ADDITIONAL REMARKS

1.

Prevalence of Public International Law and of Community Law

It also should be noted that, besides Law 3386/2005, legislation regarding aliens is based in principle and above everything else on: (a) the ratified international conventions; and (b) the Constitution. In relation to the former, it should be noted

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that, apart from multinational conventions, there is also an important number of bilateral agreements between Greece and third countries – in most of the cases under reciprocity – where more favorable treatment is given to the legal status of aliens in specific cases and matters. Additionally Greece, being a member of the EU, implements the common European migration policy developed in the context of the Union, and has integrated into its legislation a host of Directives regarding visas, asylum, and third-country nationals residing in its territory; at the same time, the Community Regulations on migrants automatically become part of national law. The Schengen Agreements’ acquis communautaire and Regulation 343/200312 are two notable examples demonstrating that Community law texts have become part of Greek national law. 2.

Better Treatment of Third-country Nationals of Greek Descent

It is, however, interesting to note the special attention given to the protection of third-country nationals of Greek descent. Indeed, as already noted (see above, Section I B (e)), the law draws a distinction between aliens-‘homogeneis’ and aliens-‘allogeneis’. Furthermore, provisions in various laws sometimes assimilate aliens of Greek descent to Greek nationals. For example, Article 3 I of the Code of Lawyers (Legislative Decree 3026/1954) stipulates: No one is appointed lawyer without having the Greek nationality or the nationality of a Member State of the European Communities. [. . .] By way of exception, persons of Greek descent who do not have the Greek nationality may be appointed lawyers by special authorization by the Minister of Justice, following opinion by the competent Bar Association. Another category to which special treatment is granted is that of the so-called ‘palinnostountes’ (see above, Section I B following (h)). The Greek legislator has established a series of instruments in order to provide them with a special identity card if they do not acquire the Greek nationality or while its acquisition procedure is pending. This special identity card is also granted to their family members. A special identity card is also granted to those aliens of Greek descent who come from Albania, and to their families. However, it does not have permanent validity but only a ten-year term with the possibility of renewals. Its holders have access to the labor market without the difficulties and obligations burdening other thirdcountry nationals of non-Greek descent.

12. Council Regulation 343/2003 of February 18, 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50/1–10, 2003. This Regulation replaced the 1990 Dublin Convention on the same subject (ratified by Law 1996/1990, GG A 196).

426 3.

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For political refugees, in addition to the 1951 Geneva Convention on the Status of Refugees (see above, Section II A), Greek law also regulates their status similarly to the status of asylum seekers but not with particular generosity. 4.

Legalization Efforts for Illegal Migrants

The great number of illegal aliens, particularly from Albania and other Balkan countries, but also from Asian and African countries, living and working illegally within the Greek territory, was the main reason that forced the Greek legislator to adopt two Presidential Decrees (358 and 359) in 1997, which provided for the first opportunity of their legalization. However, few availed themselves of this opportunity. A second opportunity was provided by Law 2910/2001 with much better results. The third opportunity was provided by Law 3386/2005. Legalized third-country nationals acquire residence and work permit and have a status equal to that of the legal migrants. 5.

Non-acquisition of Immovable Property in Border Regions

Third-country aliens working and residing legally in Greece may acquire immovables anywhere except in border regions. This prohibition is characteristic of Greek law and affects approximately 60 per cent of Greek territory (Legislative Decree of June 22/24, 1927). However, aliens of Greek descent and persons having the nationality of a European Union Member State are excluded from this prohibition. They all may acquire such property upon authorization by a special committee constituted in all prefectures of the country. Incidentally, for the above-mentioned categories of persons, only 25 per cent of the Greek territory qualifies as border region. SELECTED BIBLIOGRAPHY A.

NATIONALITY

1.

In Greek

A. Argyros, ‘The Legal Status of Repatriated Ethnic Greeks of Former Soviet Union Countries’, Harm. 55 (2001) 1022–1034. A. Bendermacher-Geroussis, ‘Jurisdiction in Matters of Contestation of Nationality’, NoB 14 (1966) 913–916. A. Bendermacher-Geroussis, ‘Nationality, Plurinationality, Statelessness’ in Offer to E. Krispis (Athens, 1995). S. Grammenos, Greek Nationality Law (5th edn, Athens, 2005).

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S. Koukouli-Spiliotopoulou, ‘Nationality of Children of Greek Parents. Issues of Constitutionality and Application of Law 1438/1984’ in Essays in Honor of G. Michaelides-Nouaros, vol. B (Athens, 1987). E. Krispi-Nikoletopoulou, Nationality: General Theory – Comparative Law (Athens, 1965). E. Krispis, ‘Acquisition of Greek Nationality according to the Treaty of Lausanne (1923). Competence of the Minister of Interior and of Civil Courts in Matters of Nationality’, Koinodikion 3 (1997) 271–285. S. Nikiforou-Anastasiadou, ‘Nationality of Repatriating Ethnic Greeks and Political Refugees’, Harm. 53 (1999) 1371–1373. G. Papadimitriou, ‘The Constitution and Voluntary Loss of Nationality’, ToS 5 (1979) 418–457. Z. Papassiopi-Passia, ‘Acquisition of Greek Nationality by Birth and by Recognition – A first Approach to the New Rules of the Code of Greek Nationality Effected by Law 1438/1984’, Harm. 40 (1986) 957–966. Z. Papassiopi-Passia, ‘The Effects of Marriage on the Nationality of the Married Woman Following Law 1438/1984’, EEEur.D 6 (1986) [special issue in memoriam of D. Evrigenis] 401–425. Z. Papassiopi-Passia, ‘Article 15 of the Universal Declaration of Human Rights and Greek Nationality Law’ in 50 Years of the Universal Declaration of Human Rights 1948–1998, K. Koufa (ed.) (Thessaloniki, 1999) 81–95. Z. Papassiopi-Passia, Nationality Law (8th edn, Thessaloniki, 2006). E. Vassilakakis, ‘Proof of Nationality’, Harm. 53 (1999) 1387–1396. J. Voulgaris, ‘The Discrimination between ‘Homogeneis’ and ‘Allogeneis’ and Its Influence on the Acquisition of Greek Nationality’, Harm. 53 (1999) 1354–1364. 2.

In Languages Other than Greek

P. Adamopoulou, ‘Notes sur la législation relative à la nationalité hellénique et le principe de l’égalité des sexes’, RHDI 35–36 (1982–1993) 131–146. M. Gavouneli, ‘The Code of Greek Nationality: A Short History’, RHDI 51 (1998) 642–645. A. Grammaticaki-Alexiou, ‘Greek Nationality Law’ in Nationality Laws in the European Union, B. Nascimbene (ed.) (Milan, 1996) 387–408. Z. Papassiopi-Passia, ‘The Greek Nationality Law in a Nutshell’, RHDI 51 (1998) 501–519. Z. Papassiopi-Passia, ‘Le droit à la nationalité’ in Essays in Honor of Georgios I. Kassimatis (Athens, 2004) 507–524. Ch. Papastathis, ‘The Nationality of the Mount Athos Novices and Monks of Non-Greek Origin’, Balkan Studies 8 (1967) 75–86. N. Sitaropoulos, ‘Freedom of Movement and the Right to a Nationality v. Ethnic Minorities: The Case of Ex-Article 19 of the Greek nationality Code’, European Journal of Migration and Law 6 (2004) 205–223.

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B.

THE LAW OF ALIENS

1.

In Greek

G. Amitsis and G. Lazaridis (eds), Legal and Socio-political Dimensions of Immigration in Greece (Athens, 2001). A. Argyros, ‘The Legal Status of Repatriated Ethnic Greeks from the Countries of the Former Soviet Union’, Harm. 55 (2001) 1029–1034. J. Cavounidi, Characteristics of Immigrants: The Greek Regularization Program of 1998 (Thessaloniki, 2002). A. Grammaticaki-Alexiou, ‘The Alien Worker’s Treatment by the Greek Private International Law’, EEEur.D 18 (1998) 1–10. K. Ioannou, ‘The Protection of Aliens in the Framework of Public International Law’, EEEur.D 17 (1997) 853–865. P. Kakkalis (ed.), Aliens’ Law. Greek Legislation (2nd edn, Athens, 2005). E. Kapnopoulou and N. Spigel, ‘What Applies for the Acquisition of Property by EU Citizens in the Greek Territory?’, NoB 42 (1994) 717–736. G. Katrougalos, ‘Social Rights of Illegal Aliens’ in Legal and Socio-political Dimensions of Immigration in Greece, G. Amitsis and G. Lazaridis (eds), (Athens, 2001). X. Kontiadis, ‘Social Rights of Migrants and Refugees’ in The Combat of Racism and Xenophobia in Greece and Europe, P. Naskou-Perraki (ed.) (Athens, 2000). Th. Lianas, ‘Administrative Expulsion of Aliens – Law 2910 of 27.4/2.5.2001’, Scientific Yearbook of the Thessaloniki Bar Association 23 (2002) 91–97. I. Lixouriotis, The Legal Status of Immigrant Employees in Greece (Athens, 1998). A. Mavrakis, D. Parsanoglou and M. Pavlou (eds), Immigrants in Greece (Athens, 2001). O. Papadopoulou, ‘Aliens and Temporary Judicial Protection’, ToS 22 (1996) 95–121. T. Papadopoulou, ‘Institutional Innovations Confronting Migration’, ToS 28 (2002) 507–557. Z. Papassiopi-Passia, ‘Legal and Illegal Labor of Aliens in Greece’ in The Legal Status of Aliens in Greece, Hellenic Private International Law Association (Athens, 1995) 77–132. Z. Papassiopi-Passia, ‘Immigrants and Repatriated Greeks. Problems of their Reception and Acceptation in our Established Law’ in Immigrants, Racism and Xenophobia. International Symposium, N. Frangakis (ed.) (Athens, 1998) 115–128. Z. Papassiopi-Passia, ‘The Legal Status of Third-country Workers’, EEEur.D 18 (1998) 11–37. Z. Papassiopi-Passia, Legal Condition of Aliens (2nd edn, Thessaloniki, 2004). Z. Papassiopi-Passia, Basic Laws on the Legal Status of Aliens in Greece (5th edn, Thessaloniki, 2005).

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Th. Papatheodorou, ‘The New Institutional Framework for Migrants: Between Lawfulness, Strictness and Control’, Poiniki Dikaiosyni 8 (2005) 1185– 1192. M. Pavlou and D. Christopoulos (eds), Greece of Migration, Social Participation, Rights and Citizen’s Quality (Athens, 2004). D. Sideris, ‘Administrative and Judicial Expulsion of Aliens-Political Refugees’, EEEur.D 17 (1997) 915–938. N. Sitaropoulos, ‘The Right of Family Unit and Reunification of Alien Migrants in Host States: Aspects of International, European and Greek Law’ in 2001 Report of the Greek National Commission for Human Rights (NCHR) (Athens, 2002) 281–310. N. Sitaropoulos, ‘The Protection of Fundamental Rights of Aliens by Greece Under the Prism of the European Court of Justice Jurisprudence’, ToS 29 (2003) 233–271. J. Voulgaris, ‘The Constitutional Protection of the Alien’, EEN 47 (1980) 953–965. J. Voulgaris, ‘Entry-Exit, Residence of Aliens in the Greek Territory’ in The Legal Status of Aliens in Greece (Athens, 1995) 1–46. S. Vrellis, Law of Aliens (2nd edn, Athens, 2003). 2.

In Languages Other than Greek

Th. Antoniou, ‘Issues and Problems in the Greek Law of Aliens’ in Free Movement of Persons in Europe, H. Schermers et al (eds) (The Hague, 1993) 125–153. A. Dimitropoulos, Constitutional Rights of Foreign Citizens in Greece (Athens, 2004). A. Fakiolas, ‘Migration and Unregistered Labor in the Greek Economy’ in Eldorado or Fortress? Migration in Southern Europe, R. King et al (eds) (Houndmills, 2000) 57–78. G. Lazaridis, ‘The Helots of the New Millennium: Ethnic-Greek Albanian and ‘Other’ Albanians in Greece’ in Into the Margins: Migration and Exclusion in Southern Europe, F. Anthias and G. Lazaridis (eds) (Aldershot, 1999) 105–121. G. Lazaridis and J. Poyago-Theotoky, ‘Undocumented Migrants in Greece: Issues of Regularization’, International Migration 37 (1999) 715–738. Th. Lianos, A. Sarris and L. Katseli, ‘Illegal Immigration and Local Labor Markets: The Case of Northern Greece’, International Migration 34 (1996) 449–483. E. Markova and A.H. Sarris, ‘The Performance of Bulgarian Illegal Immigrants in the Greek Labor Market’, South European Society and Politics 2 (1997) 57–77. Z. Papassiopi-Passia, ‘La politique migratoire hellénique. L’éloignement des étrangers et la détention administrative’ in Exclusion and Detention of Aliens in the European Union Countries, B. Nascimbene (ed.) (Milan, 2001) 261–288.

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Z. Papassiopi-Passia, ‘The Legal Position of Migrants in Greece’, RHDI 59 (2006) 425–448. E. Petrakou and I. Dimitrakopoulos, ‘Migrants, Minorities and Employment in Greece. Study compiled by the National Focal Point of EUMC ‘ANTIGONE’’ in Migrants, Minorities and Employment. Exclusion, Discrimination and Anti-discrimination in 15 Member States of the European Union, B. Winkler, R. Watkins, J. Kellock and B. Sorensen (eds) (Vienna, 2003). N. Sitaropoulos, ‘The New Greek Immigration Law: A Step Forward’, International Nationality Law and Practice 15 (2001) 228–234. N. Sitaropoulos, ‘Refugee Welfare in Greece: Towards a Remodeling of the Responsibility-Shifting Paradigm?’, Critical Social Policy 22 (2002) 436–455. N. Sitaropoulos, Immigration Law and Management in Greece (Athens, 2003). N. Sitaropoulos, ‘Equal Treatment between Persons Irrespective of Racial or Ethnic Origin: The Transposition in Greece of Directive 2000/43’, International Journal of Human Rights 8 (2004) 123–158. A. Skordas, ‘The Regularization of Illegal Immigrants in Greece’ in Regularizations of Illegal Immigrants in the EU, Ph. de Bruycker (ed.) (Brussels, 2000) 343–387. A. Skordas, ‘The New Immigration Law in Greece: Modernization on the Wrong Track?’, European Journal of Migration Law 4 (2002) 23–48.

Chapter 19

Tax Law and Investment Incentives John C. Dryllerakis*

I.

INTRODUCTION

The Constitution provides for certain restraints and limitations on the direct or indirect ways that the government or local authorities may follow in the field of taxation. Under Article 78 Const.: (a) a tax may be imposed only by law passed in Parliament; (b) Parliament may not delegate its legislative power to the government or other authority concerning the object and rate of taxation as well as tax exemptions; and (c) a tax or other economic burden may not be imposed by retroactive legislation extending beyond the previous economic year. Also, under Article 4 V Const., all Greek citizens are required to contribute to public expenditures without distinction and in proportion to their financial ability. Tax (φóρος, foros) is defined as the monetary payment imposed, without specific consideration, by the state in order to raise revenue and pursue its various objectives. Taxes are distinguishable from fees (τέλη, teli), which are payable for specific services offered to the taxpayer by the authorities (e.g., cleaning fees) and from contributions (εισφορές, eisfores), which constitute mandatory payments by a group of people benefiting from a certain program or action of the authorities (e.g.,

* Attorney at Law, Athens. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 431–458. © 2008, Kluwer Law International BV, The Netherlands.

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development of the area where they own property).1 The tax system relies heavily upon indirect taxation (έμμεση φορολογία, emmesi forologia), not in conformity with the international tendency but mainly due both to its lack of effectiveness to directly catch the real income or gain of natural persons and legal entities and to the structure of the economy (extent of black economy). In 2005, direct taxation (άμεση φορολογία, amesi forologia) represented approximately only 43.6 per cent of the total tax revenue (EUR 18.4 billion), while indirect taxes contributed the remaining 56.4 per cent (EUR 23.7 billion).2 II.

INCOME TAXATION (φóρος εισοδήματος, foros eisodimatos)

A.

GENERAL P RINCIPLES

Natural persons domiciled in Greece and legal entities established in Greece are subject to income tax on their worldwide annual income (Income Tax Code, Law 2238/1994; ITC). Domicile is acquired by physical presence in a place and intent to have this place as the center of his social, economic or professional activity (see Ch. 5, section II D).3 Numerous other laws, continuously changing or enriched, complete a sophisticated and complex system that makes it difficult for anyone to be familiar with it or knowledgeable of its content at any moment. Natural persons not domiciled in Greece and foreign legal entities are taxed only on their income deriving from a source in Greece, actual (e.g., rentals of premises in Greece) or imputed (e.g., granting free use of their own buildings in Greece to a third party generates taxable income). Foreign legal entities are also taxed on their income from their ‘permanent establishment’ in Greece, which may be physical (office, branch, or other place of operation) or presumed (undertaking of studies or designs to be performed outside of Greece). However, treaties for the avoidance of double taxation between Greece and other countries (see below, D) adopt certain variations to the definition of permanent establishment, as well as to the taxation of a foreign domiciliary. Necessity Law 89/1967 exempted from taxation branches or offices of foreign companies established in Greece, after special approval by the Ministry of National Economy, exclusively to co-ordinate their offshore activities; these foreign companies were not allowed to engage in any business in Greece. Despite their ‘permanent establishment’, they were not subject 1. SE (full bench) 4025/1998, NoB 48 (2000) 138–142, recognized a fourth type of economic burden, not falling unto the above restrictions, the ‘administrative coercion’, i.e. an economic burden imposed to force somebody to abstain from certain activity. See C. Gialitaki, ‘The Public-finance Dimension of Tax (Casino Tickets and the Respective SE Decisions)’, DFN 53 (1999) 883–892 [in Greek]. 2. Source: Ministry of Economy and Finance, General Accounting Office, , December 16, 2006. 3. These criteria apply by definition to natural persons and not to legal entities. The ‘siège social’ in Greece is the only criterion to make the legal entity a tax subject in Greece for its worldwide income.

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to income taxation in Greece in exchange for their obligation to import foreign currency (minimum: USD 50,000 per year) to finance all their local expenses. For reasons of conformity with Community law,4 this law has been radically amended by Law 3427/2005. The latter keeps in force few of the granted exemptions. The major change is that such branches or offices are now subject to income taxation in Greece, pursuant to the general provisions. Still, their taxable income is determined in a favorable way, their revenue being calculated on a cost-plus basis regardless of their involvement in the transaction. Certain other facilities are also available to these companies (for shipping enterprises see below, Section III C). For the reasons explained further below, the ITC classifies, in five Chapters, the sources of income into six categories and distinguishes income from source: (a–b) buildings and land leasing; (c) securities, loans, directors’ fees; (d) commercial enterprises, that is business activities – regardless of legal form – in commerce and industry or any other operation for profit, excluding professional activities; (e) agricultural enterprises; (f) employment or retirement; and (g) professions and all other sources. Nevertheless, the income tax is assessed on the aggregate income from all sources and loss from one source is in principle offset against profit from another. Revenues (real or imputed) taxed in a special way or exempted from income taxation are not added to the total income. In general, gross income is reduced by (actual or presumed) expenses to arrive at the net income. Especially for enterprises and professionals (income from sources (d), (e) and (g)), their annual gross income is reduced by the depreciation of fixed assets and by the expenses incurred relating to their activity (‘productive expenses’). A tax audit may not disallow an expense as unnecessary or unreasonable but only as non-productive, i.e. unrelated to the enterprise or the profession or as not actually incurred. Despite this general rule, still tax-deductible expenses are defined in a long list included in Law 2238/1994, while ministerial decisions add other types or categories of expenses recognized as tax-deductible. Branches of foreign companies or other permanent establishment thereof may also deduct part of their head office expenses, as related to their local operation. In general, provisions for contingencies are not deductible and the same is true for certain categories of legitimate expenses. In an effort to control transfer pricing, procedures have been established for controlling their deductibility and for thorough examination of the expenses payable within the group or to the benefit thereof. More specifically, a process was established in 1997 for royalties, management or technical support fees and similar fees payable to group companies, which provided for a centralized Committee formed in the Ministry of Finance to examine the deductibility of such expenses, if exceeding (low) thresholds provided for by the law. Companies falling under the jurisdiction of this Committee were obligated to submit extensive information on the fees or royalties paid, but also comparative information on similar fees payable by other companies of the group in order for the committee to examine the arm’s length nature of the amounts payable by the Greek company. The volume of 4.

I.e. Articles 87 et seq. of the EC Treaty regulating aids granted by the state.

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information requested and the number of companies that had to respond was such that the Committee became incapable of proceeding with the examination of the cases. Later on, the provision was abolished without being applied in practice. In 2000, the procedure was replaced by the pre-approval of fees exceeding the new thresholds of the law by committees not centralized in the Ministry but operating under the Fiscal Offices (DEK-PEK)5 each time in charge for the companies concerned. This process was again abolished as of January 1, 2005 without ever being applied by that time, because the administrative acts (ministerial decisions) necessary for the formation and operation of these decentralized committees were only issued in 2005 (for past fiscal years), i.e. after the abolition of the process as of January 1, 2005. Since January 1, 2005, Law 3296/2004 brought back in effect the old process of 1997, with some differentiations, the principal being that fees are examined by the Committee only if payable to foreign entities. In essence, the centralized Committee was brought back into force. A written contract is one of the requirements for deductibility, the others being payment to or credit of the beneficiary by the date of balance sheet closing of the financial year concerned, payment of tax withheld, and issuance of relevant invoice by the beneficiary. Article 8 IV of the new tax law (Law 3522/2006) abolished again the central Committee and referred the matter to the above Fiscal Offices. The thresholds provided for by the law distinguish between: (a) royalties and remunerations payable for technical support, patents, trademarks, drawings and similar rights; and (b) expenses for management support, organization, reorganization and services in general. Expenses passed on to the customers (i.e., included in the cost of goods/services supplied by the Greek company) are not subject to pre-approval. Fees and royalties payable to offshore companies are not deductible (except for oil products). Ministerial decisions and circulars have been issued defining the information required to be submitted to the Committee, which concerns the Greek company itself and the fees payable, but also the group of companies. Comparative information on similar fees payable by other group companies is also requested. Net income of construction enterprises, unless they are corporations or close corporations, is computed and taxed in a special way, while some other categories of enterprises are also so taxed (e.g., public transportation enterprises). For income of individuals from sources (a–b) the law defines specifically the actual or presumed expenses which are deductible; the law allows a deemed depreciation of 10 per cent for houses, schools, hotels, clinics, etc. or 5 per cent for other uses as well as a percentage of up to 15 per cent or 5 per cent, respectively, for documented expenses for insurance, maintenance and operation thereof. Also, under certain restrictions, the law allows the deduction of interest payable on mortgages for acquiring first residence. Booking and documentation of expenses must be in full compliance with the Code of Books and Data (Kώδικας Bιβλίων και Στοιχείωv, Kodikas Vivlion kai Stoicheion), a highly technical and bureaucratic piece of legislation, which in many instances enables the tax audit to disallow expenses as inappropriately 5.

For these abbreviations, see ftn. 65.

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435

recorded or supported or even to disregard the books of an enterprise and to recalculate the profits in an unpredicted manner. Introduction of computerized bookkeeping reduces the formalities while for sizable enterprises disallowing of books and accounts needs consent of a special five-member committee.6 Small and medium-scale enterprises are subject to lesser book-keeping obligations. For those under obligation to follow up their purchases only, net income is computed as a predetermined percentage on their purchases or sales (coefficients of net profit),7 as the case may be, while the rest keep a simple book of revenue and expenses.8 The law also discriminates among the various categories of income, burdening certain income with surtaxes (for example, sources (a–b)) or favoring others (e.g., salaries and pensions are taxed lighter by increase of the tax-free bracket; interest paid by banks has a fixed low rate). The law taxes imputed (deemed) income in many cases; e.g., the rental earned cannot be lower than a certain yield of the ‘official (objective) value’9 and, if it is, the difference is a deemed income; a taxpayer using a self-owned house or building, to the extent that the house exceeds 200 m2 in surface, or using a second home of more than 150 m2, is considered to earn a deemed revenue, if his revenue is not sufficiently high to justify the use of the house.10 Furthermore, if the declared income is lower than the income presumed by law to be earned to cope with the expenditures of the taxpayer, the excess is taxed as deemed income. In this context, operating expenses presumed from the ownership of certain items,11 which normally require a certain level of spending, expenses for the employment of non-business personnel or the rental (actual or deemed) of a second home, as well as capital expenditures for the purchase of the above or other items or for engaging in certain activities,12 must be justified by reference to the level of the declared income; to the extent they are not, the excess is taxed as imputed income. However, excess declared income of previous years and also liquidation of capital or borrowing is deducted from the above (operating or capital) expenditures, actual or presumed, in calculating the imputed income. An extensive system of tax withholding aims at catching the tax at the source. Withholding and reporting obligations are imposed on enterprises and professionals that pay salaries, fees, interest and other types of income to taxpayers. In addition, part of the following year’s tax – to the extent it is not withheld – is advanced and calculated on the basis of the previous year’s tax. Especially for persons not covered under a treaty, payments of royalties, fees or remuneration of any kind and rentals of equipment to foreign companies not having a permanent establishment in Greece, 6. Article 30 V of Presidential Decree 186/1992. 7. Books of category A. 8. Lawyers and companies of lawyers fall under such regulation (books of category B). 9. For a definition see below, Section IV C. 10. In the past, use of a home exceeding certain size generated a deemed income. This regulation was abolished by Article 2 II of Law 3091/2002. 11. Cars and vehicles, yachts, airplanes or helicopters. 12. Acquisition of enterprises or shares or of real estate as well as the construction of buildings and the making of business loans.

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are subject to tax withholding of 20 per cent on the gross amount, except for royalties for the use of motion picture or television films or tapes for broadcasting or for the reproduction of video tapes, where the withholding rate is 10 per cent. The reduced or zero rate of a treaty for the avoidance of double taxation will override these rates, provided that the interested party produces proper documentation to certify the application of the treaty (certification system). Without such certification, the general internal legislation will apply but the taxpayer may eventually file a refund claim.13 As a general rule, Greek law allows full tax credit for taxes paid in foreign countries for income from sources within those countries. Such tax credit may not exceed, however, the amount of the corresponding Greek tax, which would be assessed, if the income were a Greek source income. TAXATION OF NATURAL PERSONS

B.

Natural persons are taxed on the basis of a progressive tax rate on their aggregate net taxable income from all sources. Compared to the past, the number of brackets has been drastically cut from 18 to five or four (in case of salaried people or pensioners), while the highest income tax rate has been brought down from 63 per cent to 40 per cent. According to the new tax law (Law 3522/2006) effective January 1, 2007, the scales for the taxation of incomes earned in years 2007, 2008, and 2009, are as follows (in EUR): Scale for Year 2007 Bracket of Income

Total

General

Employees

10,500

10,500

0%

0 10,500 / 10,500

0

1,500

1,500

15% / 0%

225 / 0 12,000 / 12,000

225 / 0

18,000

18,000

29%

5,220 30,000 / 30,000

5,445 / 5,220

45,000

45,000

39%

Excess

Tax rate

Tax

Income

Tax

17,550 75,000 / 75,000 22,995 / 22,770

40%

13. In the past, according to instructions from the Administration, a full withholding was made, even if the treaty provided for a reduced rate or a total exemption. The beneficiary might have applied afterwards for a refund, having lost the use of the money in the meantime and bearing the risk of potential currency devaluation as well as the cost of the procedure. Court decisions held that such treaties have direct application and prevail over inconsistent legislation in accordance with the Constitution (e.g. SE 965–970/1993, summarized in DFN 47 (1993) 1374 and 5340/1995, summarized in DFN 50 (1996) 975). As a result, the certification system was accepted by the tax authorities (see, however, the Greek-Austrian Treaty (below, under D), which provides for the application of this system).

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Scale for Year 2008 Bracket of Income

Total

General

Employees

10,500

10,500

0%

0 10,500 / 10,500

0

1,500

1,500

15% / 0%

225 / 0 12,000 / 12,000

225 / 0

18,000

18,000

27%

4,860 30,000 / 30,000

5,085 / 4,860

45,000

45,000

37%

16,650 75,000 / 75,000

21,735 / 21,510

Excess

Tax rate

Tax

Income

Tax

40% Scale for Year 2009 and onwards

Bracket of Income

Total

General

Employees

10,500

10,500

1,500

1,500

18,000

18,000

25%

45,000

45,000

35% 15,750 75,000 / 75,000 20,475 / 20,250

Excess

Tax rate 0%

Tax

Income

Tax

0 10,500 / 10,500

0

15% / 0% 225 / 0 12,000 / 12,000

225 / 0

4,500 30,000 / 30,000

4,725 / 4,500

40%

According to the new tax law (Law 3522/2006), as far as employees are concerned, the above scales apply, provided that the income deriving from employment constitutes a part of at least 50 per cent of their total taxable income. A surtax of 3 per cent applies on the gross income from sources (a–b) and (c). For (actual or imputed) rentals of homes not exceeding 300 m2 the surtax is reduced to 1.5 per cent. In calculating the taxable income, certain deductions are allowed from the net income of the taxpayer: a percentage of the rental of the house leased by the taxpayer, a percentage of the loan for acquiring first home, life insurance premiums with limits, nursery fees, medical and hospital expenses, donations to the State and certain non-profit associations and part of the fees paid to lawyers in relation to income from rentals reduce the net income so that only the balance is taxed, based on the above scale. The first EUR 10.500 or 12,000 (in case of salaried people or pensioners) is tax-free, to allow the taxpayer to attain a minimum standard of living, and is increased by EUR 1,000 if the taxpayer has one child, EUR 2,000 if

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he has 2 children, and EUR 10,000 if he has three children. EUR 1,000 more are added for each additional child.14 C.

TAXATION OF LEGAL ENTITIES

Greek corporations, close corporations15 and co-operatives, as well as establishments of foreign companies in Greece, public and municipal enterprises for profit are taxed at a flat rate. However, as the law does not recognize all expenses as tax deductible, as it equally does not allow deductibility for others (such as taxes, penalties, provisions), the profit of the financial statements is, in essence, recalculated for finding out the taxable income. The tax rate of 35 per cent applicable for the revenue earned up to the year 2004 has been reduced to 32 per cent for the year 2005, 29 per cent for the year 2006 and 25 per cent for the year 2007.16 The rate applies to the total net profit before any distribution, including payment of any fee to directors or profit-sharing with employees. Consequently, dividends are subject to no tax at the hands of the shareholder.17 A surtax of 3 per cent applies on the gross income from sources (a–b) and (c).

14. Law 3296/2004 returned to the system applied until 1987, i.e. low-fixed tax credits for the taxpayer and dependent family members, while certain allowances reduce the taxable income. By contrast, the system introduced in 1987 added up expenses and allowances to create a ‘negative income’. The tax corresponding to this income, on the basis of the applicable scale, calculated separately, constituted the tax credit available to the individual taxpayer. The other peculiarity of the post-1987 system was that certain expenses incurred by the taxpayer, such as for the purchase of electrical appliances, house maintenance, clothing, car repairs, etc. were recognized as negative income, provided that they were properly documented. The ratio legis of this provision was to induce the taxpayers to collect receipts from enterprises and from professionals and assist in reducing the notorious tax evasion. 15. In the past, the partners of the close corporation – and not the company – were subjected to taxation. 16. The rate before the tax reform brought by Law 2065/1992 stood at 46 per cent. For manufacturing, mining and quarrying enterprises, the rate was 40 or 35 per cent, depending on whether their stock was listed in the Athens Stock Exchange or whether they were subject to the special legislation governing investment incentives (Law 1262/1982; see below, Section VII). 17. The new system was introduced by Law 2065/1992. A flat rate was previously applied to net income after deduction of dividends, director fees and profit-sharing with employees, which were taxed separately to the beneficiary. On the basis of this two-tier system, retained earnings were taxed at the corporate level, while dividends were taxed to the shareholder at a flat rate 42 per cent or 47 per cent for registered shares and 45 per cent or 50 per cent for bearer shares respectively, depending on whether or not such shares were listed in the Athens Stock Exchange or not. However, with the exception of dividends from bearer shares not listed in the Stock Exchange, shareholders had the option of adding this income to their total income and receiving the corresponding credit or refund for the amount withheld. The tax was withheld at the source, and this exhausted the tax liability of the shareholder. Treaties on the avoidance of double taxation (see below, under D), which prevail over general tax legislation, normally provided for a lower maximum rate of taxation for dividends, e.g. 35 per cent: Dutch Treaty; 25 per cent: German, Belgian and Cypriot Treaties. Under the new law, there is no room left for applying those rates.

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In line with the general principle, Article 109 ITC regulates the credit of the corporate tax paid and dividend tax withheld corresponding to the dividends collected from a foreign subsidiary. In addition, Law 2578/1998 (as amended by Law 3453/2006) aligns national legislation with Directive 90/43518 (as amended by Directive 2003/123)19 and regulates issues of taxation of the distributed profits of parent and subsidiary companies of different Member States.20 The taxable income is calculated by deduction from net profits21 of carriedforward losses (of the last five years),22 tax-free reserves (see below, Section VII E), tax-free income23 or income taxed in a special way,24 provided that in the last two instances no corresponding distribution of profit or dividend takes place. If it does, it is presumed by the law that the distribution is drawn proportionally from all kinds of income. In that case, the distributed tax-free or specially-taxed income is taxed at the full applicable rate after deduction of the tax already paid, if any, corresponding to this part of the income. The tax laws recognize ‘joint venture’ (κoιvoπραξία, koinopraxia) and ‘union of persons’ (ένωση προσώπων, enosi prosopon) as separate fiscal vehicles and tax subjects although they do not constitute separate legal entities under company law. These operations developed in practice primarily for the performance of public works and procurements, and their recognition as tax subjects served the practical purposes from which they emerged. Therefore, although corporately a joint venture is not an entity distinguished from its partners, but the partners in fact act in their name and therefore collectively, it may nevertheless obtain an individual tax registration number (αριθμóς φορολογικού μητρώου – AΦM, arithmos forologikou mitroou – AFM), keep accounting books, issue invoices as a separate vehicle and be subject to income tax in its own name. A foreign entity may participate in a Greek joint venture, if it has either: (a) a permanent establishment in Greece (branch); or (b) any other professional installation in Greece (office, shop, agency, warehouse, etc.). To benefit small and medium-size enterprises, a special rate is provided for general and limited partnerships25 and communities (κοινωνίες, koinonies) amounting to 24 per cent for the fiscal year 2005, 22 per cent for 2006 and 20 per cent

18. 19. 20. 21. 22. 23. 24. 25.

Council Directive 90/435 of July 23, 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States OJ L 225/6–9, 1990. Council Directive 2003/123 of December 22, 2003 amending Council Directive 90/435, above ftn. 18, OJ L 7/41–44, 2004. See the relevant ECJ judgment in Athinaiki Zythopoiia AE v. the Greek State, Case No. C-294/99 [2001] ECR I-6797. Profit is income generated from a trade or business. See also above, under A. Losses are not carried backwards. E.g., interest from state bonds issued by December 31, 1996 or interest from State bonds issued abroad afterwards. E.g., interest from bank deposits, which is taxed at the flat rate of 10 per cent. In the past, partners constituted the tax subject although the company had a legal personality.

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afterwards. For joint ventures,26 civil and silent companies27 the rates are 32 per cent, 29 per cent and 25 per cent correspondingly. Finally, for companies of lawyers and notaries the rate is 25 per cent. In cases of partnerships and close corporations, in lieu of director fees, an amount is deducted as a fee for up to three partner(s)administrator(s), equal to their partnership share, calculated on 50 per cent of the profits. This fee is accumulated in their income and is taxed based on the rate of the applicable bracket. D.

BILATERAL TREATIES FOR THE AVOIDANCE DOUBLE TAXATION

OF

Greece has entered into such treaties with the following countries28 (in alphabetical order): Albania (Law 2755/1999, GG A 252); Armenia (Law 3014/2002, GG A 103); Austria (Law Decree 994/1971, GG A 210); Belgium (Law Decree 117/1969, GG A 41 and Law 3407/2005, GG A 266); Bulgaria (Laws 2255/1994, GG A 195 and 2927/2001, GG A 140); China (Law 3331/2005, GG A 83); Croatia (Law 2653/1998, GG A 250); Cyprus (Necessity Law 573/1968, GG A 223); the Czech Republic (Law 1838/1989, GG A 86);29 Denmark (Law 1986/1991, GG A 189); Egypt (Law 3484/2006, GG A 170);30 Finland (Law 1191/1981, GG A 206); France, (Law Decree 4386/1964, GG A 192); Georgia (Law 3045/2002, GG A 198); Germany (Necessity Law 52/1967, GG A 134); Hungary (Law 1496/1984, GG A 178); India (Law Decree 4580/1966, GG A 235); Ireland (Law 3300/2004, GG A 262); Israel (Law 2572/1998, GG A 12); Italy (Necessity Law 23/1967, GG A 109 and Law 1927/1991, GG A 17); Korea (Law 2571/1998, GG A 11); Kuwait (Law 3330/2005, GG A 82); Latvia (Law 3318/2005, GG A 46); Lithuania (Law 3356/2005, GG A 152); Luxembourg (Law 2319/1995, GG A 127); Mexico (Law 3406/2005, GG A 265); Moldavia (Law 3357/2005, GG A 153); the Netherlands (Law 1455/1984, GG A 89, as amended by Law 3464/2006, GG A 124); Norway (Law 1924/1991, GG A 16); Poland (Law 1939/1991, GG A 37); Portugal (Law 3009/2002, GG A 90); Romania (Law 2279/1995, GG A

26.

27. 28. 29.

30.

Until 1992 (Law 2065/1992), partnerships and close corporations, although separate legal entities, were not taxed as such in the same way as corporations. Tax liability rested on their members who had to include their attributed share of the entity’s profit in their own tax return. The same applied to the members of a joint venture. They are tax subjects although they do not constitute a legal entity. There is also a bilateral agreement with Russia (ratified by Law 3047/2002, GG A 200), which, however, has not been brought into force as yet. The Treaty had been concluded originally between Greece and Czechoslovakia. According to Announcements of the Greek Ministry of Foreign Affairs, the aforementioned Treaty remains in force towards both the Czech Republic and Slovakia (GG A 23/1995, 138/1995 respectively). Not yet applied.

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9); Russia (Law 3047/2002, GG A 200);31 Slovakia (Law 1838/1989, GG A 86);32 Slovenia (Law 3084/2002, GG A 318); South Africa (Law 3085/2002, GG A 319); Spain (Law 3015/2002, GG A 104); Sweden (Law 4300/1963, GG A 73); Switzerland (Law 1502/1984, GG A 192); Turkey (Law 3228/2004, GG A 32); Ukraine (Law 3046/2002, GG A 199); United Kingdom (Law Decree 2732/1953, GG A 329); United States (Law Decree 2548/1953, GG A 231, 333); and Uzbekistan (Law 2659/1998, GG A 268). The treaties with the United Kingdom and the United States, Germany and France are the oldest ones. The rest more or less follow the OECD model. These treaties in general define certain important terms, such as permanent establishment or place of taxation, and provide for certain local tax exemptions in favor of nationals of the other country or for special treatment of certain types of income. Article 28 I Const. provides that ratified international treaties constitute an integral part of the Greek legal system and that they prevail over any contrary statutory provision, including the tax law (see Chapter 3, under I D). Besides the aforesaid treaties, Greece has recently proceeded with the ratification of Treaties between the EU or Greece and several other countries, specifically regarding taxation of income of natural persons from savings in the form of interest payments, within the framework of Directive 2003/48.33 Greece has ratified such treaties with the following countries (in alphabetical order): Andorra (Law 3361/2005, GG A 157); Anguilla (Law 3359/2005, GG A 155); Netherlands Antilles and Aruba (Law 3352/2005, GG A 148); the Cayman Islands (Law 3355/2005, GG A 151); Jersey, Guernsey and the Isle of Man (Law 3358/2005, GG A 154); Liechtenstein (Law 3365/2005, GG A 161); Monaco (Law 3364/2005, GG A 160); Montserrat (Law 3354/2005, GG A 150); San Marino (Law 3362/2005, GG A 158); Switzerland (Law 3363/2005, GG A 159); the Turks and Caicos Islands (Law 3353/2005, GG A 149); and the British Virgin Islands (Law 3360/2005, GG A 156). These treaties define terms, such as beneficial owner, paying agent and interest payment, while providing for withholding tax to be levied by the paying agent, as well as for the elimination of any double taxation, which may result from the imposition of the aforesaid withholding tax. Greece has also ratified treaties for the taxation of profits of shipping enterprises and airlines with several countries as follows: (a) Australia (Law 1101/1980, GG A 296); (b) Bulgaria (Laws 2255/1994 and 2927/2001); (c) China Law Decree 45/1974, GG A 254; Law 2419/1996, GG A 141); (d) Denmark Law Decree 4390/1964, GG A 191); (e) Ethiopia (Law Decree 4396/1964, GG A 197); (f) Lebanon (Necessity Law 131/1967, GG A 176); (g) Morocco (Law 1343/1983, GG A 41); (h) the Netherlands (Law 1455/1984, as amended by Law 3464/2006); (i) Norway (Law 1924/1991); (j) Pakistan (Law 933/1979, GG A 148); (k) Poland (Law 1939/1991); (l) Romania (Necessity Law 24/1967, GG 31. 32. 33.

Not yet applied. See ftn. 29. Council Directive 2003/48 of June 3, 2003 on taxation of savings income in the form of interest payments, OJ L 157/38–48, 2003.

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A 99 and Law 2279/1995); (m) South Africa (Law 3085/2002); (n) Switzerland (Laws 4296/1963, GG A 70 and 1502/1984); (o) Syria (Law Decree 230/1969, GG A 130); (p) the USSR;34 and (q) Yugoslavia.35 Some of them overlap with the applicable treaty for the avoidance of double taxation. III.

OTHER DIRECT TAXES

A.

DONATION, SUCCESSION, AND L OTTERY GAINS T AXATION

A succession tax is imposed on the assets of an estate either situated in Greece or, regardless of their situs, belonging to decedents, who are Greek nationals (domiciled in Greece or abroad), or to decedents, who are foreign nationals domiciled in Greece at the time of their death.36 Debts of the estate are deducted from its gross market value. The net value thus derived is subject to taxation on the basis of a progressive scale ranging between 5 and 40 per cent, depending on the degree of relationship between the decedent and the heir or legatee. The latter are classified in three categories: (a) spouse, children and parents; (b) other descendants and ascendants, recognized children, brothers and sisters and other relatives of the third degree (nephews/nieces and uncles/aunts), foster parents, children from previous marriage of the spouse and sons or daughters-in-law; and finally (c) all the rest.37 The tax rates, pursuant to Law 3427/2005, range from 5 to 20 per cent, 10 to 30 per cent and 20 to 40 per cent,38 for the corresponding categories (a)–(c). A taxfree amount of EUR 80,000, 15,000 and 5,000 for each class is recognized for each category respectively, while the maximum rate applies to any value of the estate exceeding EUR 220,000. A special low rate applies to the transfer of shares, bonds and other securities of companies to persons classified in the first and second category, as an incentive to maintain the business intact within the family and secure its unobstructed continuation. For the first and second classes, the rate is respectively fixed at 0.6 per cent and 1.2 per cent for securities listed and 1.2 per cent and 2.4 per 34. Absent any official reaction by the Greek State, it is still unclear if – and to what extent – this Convention remains in force. 35. Ibid. 36. Contrary to income taxation, which depends on domicile (regardless of nationality), nationality is the basic element in inheritance (see Ch. 17, Section I E). 37. The categories were reduced from five to four with a reallocation of the beneficiaries by Law 2065/1992; and subsequently to three by Law 3091/2002, practically merging the second and third categories. The five older categories were: spouse and children; descendants (other than children) and ascendants; brothers and sisters; other relatives of the third degree (nephews/ nieces and uncles/aunts); and all the rest. 38. The scale applying before Law 2065/1992 ranged in each of four classes from 6 to 27 per cent, 7 to 29 per cent, 12 to 50 per cent, 16 to 61 per cent and 19 to 72 per cent. A tax credit of GRD 80,000, 60,000, 40,000, 30,000, and 20,000 was respectively allowed for each of the five categories. The maximum of the above rates applied to the part of the net value of the estate exceeding GRD 10,000,000.

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cent for those not listed in the Stock Exchange. It should be pointed out that Greece has entered into a few bilateral treaties, which mainly define the situs of the assets of the estate. The most important treaty is with the United States (Necessity Law 54/1967, GG A 134). The same tax is imposed on donations. Successive donations to the same person by the same donor are calculated cumulatively for purposes of computing the tax. Donations to certain close relatives (children), in more frequent use after the institution of dowry was abolished (see Chapter 9, under section II F), are subject to half of the regular tax up to EUR 100,000–130,000. The law taxes all gains from lotteries at the flat rate of 10 per cent. B.

SIZABLE R EAL ESTATE P ROPERTY T AX (PAID BY OWNER – FMAP)

In 1997 a property tax was brought back in effect for sizable real estates (φóρoς μεγάλης ακίνητης περιουσίας – ΦMAΠ foros megalis akinitis periousias – FMAP): for natural persons a tax exemption of EUR 243,600 exists, which increases to EUR 487,200 for married couples and furthermore by EUR 61,650 for the first two children and EUR 73,400 for the third, etc. For values exceeding the tax exemptions, the tax rates escalate between 0.3 per cent and 0.8 per cent. For legal entities, the same exemption of EUR 243,600 exists and the rate is fixed at 0.7 per cent for any value in excess. Several other exemptions exist, e.g. for hotel enterprises, etc. Greek or non-offshore companies owning real estate in Greece are required to have registered shares and to be able to trace their shareholders through to individuals. Several exemptions exist, e.g. companies listed or owned by institutional investors. Offshore companies or companies not complying with the above obligation pay a 3 per cent annual special tax calculated on the ‘official’ (objective) total market value. It should be clarified that this is not a surtax calculated on the income tax due but a separate tax that is especially heavy. C.

TAXATION OF SHIPS AND SHIPPING ENTERPRISES

Ships under Greek flag are classified in two categories (Law 27/1975). Income from ships of category A39 is taxed at a flat dollar rate (USD 0.53–0.9540 per ton, depending on the age of the ship). The tax rate is further increased or decreased (factors ranging from 1.2 to 0.8), depending on the gross tonnage of the ship between 100 to 80,001 tons and over, to favor big ships. Ships of category B41 are 39. It includes freighters, tankers and refrigerated ships of gross tonnage of 3,000 koros or more. 40. These rates are set by Article 6 of Law 27/1975. As from 1981, they are annually increased by 4 per cent. Currently the rates range between USD 1.187 to 1.523. 41. It includes sailing and power-driven vessels and other small crafts.

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taxed in GRD42 (200 to 300 per register tons43) based on their gross tonnage. There are several exemptions; for instance, ships built in Greece and registered under the Greek flag are exempted from tax until they reach the age of six years.44 Payment of tax exhausts any tax obligation of the ship-owners as well. Branches or offices of foreign companies dealing exclusively with the management, exploitation, chartering, insurance, average adjustments, brokerage of sale, shipbuilding, chartering or insurance of ships under Greek or foreign flag may be exempted from income taxation, despite having a permanent establishment in Greece, in exchange for their obligation to import foreign currency to finance their local operation (minimum USD 50,000 per year), according to Article 25 of Law 27/1975, as well as Necessity Laws 89/1967 and 378/1968. The aforesaid (see above, Section II A) recent amendments of Law 3427/2005 (as to the tax treatment of local branches or offices of foreign companies) have not affected the tax exemption of shipping enterprises, as described above.45 D.

CAPITAL GAINS T AX

Apart from the tax described below, introduced by Law 3427/2005, there is no general capital gains tax legislation in Greece, although capital gain from the transfer of real estate constitutes one of the main sources of wealth in Greece. Any gains of enterprises are normally aggregated in their income, although conceptually they do not constitute ‘revenue’. Actually any difference from a sale below the official (objective) values46 is considered as a deemed income or a non-deductible loss. Gains of individuals from the sale or development of real estate have been caught in the past as a business income under the theory that they constituted the result of business activity. This, however, happened occasionally and depending on the circumstances, and could not be considered as a general application rule. In the context of the income taxation of source (d) (enterprises), there are provisions which treat as income certain specific gains such as the realized appreciation of fixed assets of an enterprise, while the assignment of goodwill or intangible rights is taxed at a flat rate of 20 per cent for individuals. Business units have to pay the difference between 20 per cent and their applicable tax rate. By virtue of Law 3427/2005 a capital gains tax, named ‘tax on automatic over-value’ (φóρoς αυτομάτου υπερτιμήματος, foros automatou ypertimimatos)

42. The rates have been readjusted as above, by virtue of Law 2459/1997. 43. The rates in EUR are 0.60, 0.70, 0.80 per koros for capacity of 20, 30, and 50 koros. EUR 1 per any additional register tons. 44. The character of this provision as subsidy is challenged. See Lia Athanassiou, ‘EC State Aid Law and Shipping’, RHDI 50 (1997) 403–433 at 409; contra Anthony Antapassis, Taxation of Income Arisen Out of Greek Ships, (Athens-Komotini, 2001) 85 [in Greek]. 45. See Article 34 of Law 3427/2005. 46. See the definition under Section IV C.

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was imposed on transfers by individuals47 of real estate, acquired after January 1, 2006. This new tax aims, in combination with the VAT on new buildings and the transaction tax, which replaced traditional transfer tax (see below, Section IV C), to combat tax evasion and to rationalize the tax burdens on real estate transfers. The capital gains tax has a diminishing rate set against the number of years the property was held by the seller. If a seller chooses to resell his property after less than five years of ownership, he is taxed at 20 per cent of the gain, and so forth (10 per cent for sales after five to 15 years, 5 per cent for sales after 15 to 25 years, down to 0 per cent if the property sold was held by the seller for over 25 years). The value each time subject to tax, if any, is the difference between the acquisition value and the sale price, or official (objective) value, wherever such system applies (see below, Section IV C), whichever is higher. As of 1999, capital gains from sale for shares not listed in the Stock Exchange is taxed at the rate of 5 per cent of the price or of the net worth of the corporation,48 calculated in the way provided by the law, adjusted to reflect profitability of the last five years, whichever is higher. Although for national purposes this is characterized as an income tax, for purposes of application of the treaties for the avoidance of double taxation it is treated as gains deriving from commercial business, thus non creating permanent establishment.49 Therefore, the non-Greek resident shareholder selling its shares is normally exempt from this tax based on the relevant treaty.50 A special procedure is imposed, including signature of a written agreement both for registered and bearer shares and its registration with the tax authorities. Failure to comply with these formalities makes the transaction null and void, according to the law. Depending on the type of infringement of the procedure, the trend of the courts51 is to consider that the sanction has effect only for tax purposes and does not affect the validity of the transaction as such. In case of liquidation of a corporation or a close corporation, any proceeds in excess of the capital contributed increased by the amount of the already taxed reserved profits is subject to taxation at the rate applying on corporations.

47. Article 7(e) of Law 3427/2005. Enterprises are subject to income tax for the gains from the disposal of the capital of the business. 48. Shares listed in the Stock Exchange are not subject either to the above procedure or to such tax. Instead, a tax of 0.1 per cent on the sale price is collected at the transaction together with other payable fees and expenses. 49. This has been stated by the State Legal Council in opinion No. 721/2000, which has been accepted by the Administration: , December 10, 2006. 50. According to opinion 432/2000 of the State Legal Council, DEE 6 (2000) 1040–1042, which has not been followed by the Administration, this tax is a transaction tax by nature, in which case the treaties should not apply and the foreign resident seller would have to pay the tax. 51. CA (Athens) 2807/2005, DEE 11 (2005) 968–971.

446 E.

John C. Dryllerakis REVALUATION TAX

In the past, special legislation repeatedly required enterprises to revalue in their books their real estate (land and buildings) and occasionally machinery. Law 2065/1992 made the regular revaluation of real estate mandatory every four years, starting with 1992. The overvalue, at the discretion of the enterprise, offsets any carried-forward losses; the excess – or the total if no offsetting takes place – is taxed at the rate of 2 per cent (in case of land) or 8 per cent (in case of buildings),52 and it is capitalized, so that new shares are distributed without charge to the shareholders. The payment of this tax exhausts any tax liability. This is important for the case of sale of shares (once after capitalization the revaluation amount constitutes part of the net worth), or the liquidation of the company, in which case the revaluation counts as well as paid up capital. Revaluation is made on the basis of fixed rates, depending on the time of acquisition. Such rates apply on a predetermined market value. The capital gain (overvalue) created from the application of International Accounting Standards (IAS)53 by companies listed in the Stock Exchange or companies which are consolidated in the Financial Statements of a listed company, is not added to the corporate income, and it is taxed separately in the name of the corporation at the rate of 2 per cent for land and 8 per cent for buildings (Law 3229/2004). Any loss from revaluation of subsequent years does not give rise to tax refund. IV.

INDIRECT TAXATION

A.

TRANSACTION T AXES

1.

Value Added Tax (VAT; φόρος προστιθέμενης αξίας – ΦΠA, foros prostithemenis axias – FPA)

The value added tax (VAT) system constituted a major change in Greek indirect taxation. It introduced the regime provided for by the Sixth VAT Directive in order to replace totally or partially many other indirect taxes and, more particularly, the turnover tax and stamp taxes.54 VAT is payable when any person engaged in independent economic activity supplies goods or services in Greece or imports55 goods into Greece. Certain categories of transactions are exempt (such as legal, 52. Article 19 II of Law 3296/2004. 53. Or IFRS (International Financial Reporting Standards), as per the current terminology. 54. The VAT was introduced as of January 1, 1987 by Law 1642/1986, which, after many amendments, has already been replaced totally by Law 2859/2000, rather as a codification than for introduction of major changes. 55. Effective January 1, 1993, in the context of the common single market, movements of goods between Greece and the other EU Member States are called ‘intercommunity acquisitions/ deliveries’, and are not treated as imports or exports (Law 2093/1992).

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notarial and medical services, post office services, leases of real estate, delivery of newspapers, etc.), while special treatment is provided for small enterprises, farmers and travel agents. In principle, VAT is a neutral tax for enterprises, borne ultimately by the consumer but collected gradually at all stages of production by the persons responsible. In essence, such persons collect VAT on their outputs and pay it to the State after deducting the VAT paid on their inputs. If the balance is negative, they collect credits and, per case, a refund. Export of goods is exempt from VAT. Still, however, the exporter is entitled to a full credit of VAT on his inputs. VAT on the following supplies is not recoverable: tobacco, alcohol drinks (liquors and spirits), when used for non-vatable activities, business entertainment, traveling expenses of staff, motor vehicles up to nine seats, motorcycles, aircrafts, and vessels for entertainment or sports, etc. Vatable persons with a VAT number in a EU member state may obtain refund of VAT paid in Greece under certain conditions.56 Transactions of the State or state agencies, medical, post office, banking and financial services as well as lawyers, doctors, dentists, nurses, etc., athletic clubs and non-industrial building leases are not subject to VAT with the exception of a selected list of services and deliveries of goods (like telecommunications, distribution of energy, transportations, storage, lease of areas within shopping centers)57 or if the exemption from VAT would lead to a distortion of competition. All other transactions are divided into two categories attracting the rate of 19 per cent or 9 per cent58 per case. This reduced rate applies e.g. to products and services related to agricultural production, food and pharmaceutical products, medical equipment and ancillary goods, transportation of persons, catering, coffee shops and restaurants. A low rate of 4.5 per cent applies to transfer of books, printed material, theater tickets, etc. A 19 per cent VAT was imposed as of January 1, 2006 on the transfer by the constructor or another vatable person of ‘new’ buildings,59 which have not been used up to the transfer. Traditional property transfer tax in these cases is abolished (see below, C; for capital gains, see above, Section III D). The change in the property tax system is designed to combat tax evasion and real estate market speculation. The intent is for the new VAT to induce developers to record all material and works. VAT is also imposed on apartments in new buildings delivered to the owner of the land by the constructor who undertook the construction of the building, as 56.

Residents of non EU Member States may also claim for refund of VAT, provided that their country of residence mutually provides for a corresponding right of refund. 57. It has been introduced by virtue of Law 3522/2006, which provides for a right of the responsible person to choose if he prefers to be subjected to VAT taxation, under specific prerequisites. 58. The rate was increased from 18 to 19 per cent as of 1 April 2005 (Art. 12 I of Law 3336/2005). 59. I.e., buildings for which the construction permit was issued or revised from January 1, 2006 onwards. Sale of real estate, the building permit of which was issued subsequently qualifies for an exception from VAT, if all necessary documentation was filed appropriately by November 25, 2005.

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a consideration for the construction of the whole building. An exemption from VAT on acquisition of first residence exists, similar to the one from property transfer tax. 2.

Stamp Tax (χαρτόσημο, chartosimo)

With the exception of those subject to VAT, banking transactions as well as transactions related to shares and bonds, all other transactions as well as all contracts which are made within the jurisdiction of the Greek tax authorities (e.g., non-bank loans signed or performed in Greece or assignment of contracts) are subject to stamp tax, calculated either as a percentage of the value of the transaction or as a fixed, usually low, amount. Rates are set out in the Stamp Tax Code (Kώδικας Tελώv Χαρτοσήμου, Kodikas Telon Chartosimou), the general rule being that business contracts are subject to a rate of 2.4 per cent on their value, while nonbusiness contracts to 3.6 per cent. There are many exemptions and variances. The most common stamp tax met in practice is on the rentals of non-industrial buildings (3.6 per cent), as they are exempted from VAT. 3.

Turnover Tax (φóρoς κύκλου εργασιών, foros kyklou ergasion)

In a manner resembling the VAT, turnover tax (TOT) was imposed on the gross revenue of industrial or handicraft enterprises from the sale of their products, on the gross revenue of banking institutions and insurance companies, on the value of imported goods, and finally on the gross revenue from certain categories of services. The general rate was 8 to 10 per cent but reduced or increased rates ranging from 4 to 15 per cent applied in certain cases. Gross revenue was calculated by deducting from sales the value of raw materials which actually had been subjected to TOT (as a product of another industry or at importation) or which were exempted from TOT. The main differences between TOT and VAT are that: (a) VAT applies to all and any deliveries of goods (including self-consumption) and services as well as to the import of goods, while TOT had a more selective application; (b) VAT applies to retail sales as well; (c) technically, any VAT already paid at previous stages will be credited to the payable one (while the sales revenue subject to TOT is reduced only by the supplies subjected thereto); and (d) VAT is refunded upon export of goods. Even after the introduction of VAT, TOT still applies but only to insurance companies. 4.

Capital Concentration Tax (φóρoς συγκεντρώσεως κεφαλαίov, foros syngentroseos kefalaiou)

Law 1676/1986 introduced a special tax of 1 per cent on capital concentration, i.e. establishment, conversion or merger of a company, capital increase or capital

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contribution.60 Some of the above taxes replaced existing stamp tax burdens. A surtax of 0.1 per cent has been added in favor of the Hellenic Competition Commission. This is a tax in favor of third parties and it should not be considered as compatible with the VAT system61 (see also below, Section V B). B.

SALES TAXES

Special sales taxes (i.e. consumption tax, φóρoς καταναλώσεως, foros katanaloseos; and luxury tax, φóρoς πολυτελείας, foros polyteleias) ranging from 10 to 40 per cent apply to sales in Greece of several kinds of goods. The tax applies to their sale price. Consumption taxes also are levied on petroleum products as well as on certain other categories of goods. C.

REAL ESTATE TRANSFER TAX (φóρoς μεταβιβάσεως ακινήτων, foros metavivaseos akiniton) AND TRANSACTION TAX (τέλος συναλλαγής, telos synallagis)

The real estate transfer tax rate is 7 per cent for real estate property of up to EUR 15,000 and 9 per cent for any amount in excess. These rates are respectively increased to 9 and 11 per cent when the property is situated in an area covered by a public fire-fighting service. Reduced rates and exemptions apply in certain cases, such as mergers, distributions, first residence, etc. The rate applies on the agreed price or on the official objective (imputed) market value of the real estate property, whichever is higher. For the determination of the taxable value the official (objective) market values are defined by the Ministry of Finance, which indicate the minimum value on the basis of certain parameters (location, floor, age, marketability, etc.). In cases where there are no pre-determined values, comparative market values are used. In the past, this tax had a general application, while, after the introduction of the VAT and the capital gain tax on new buildings (see above, A 1), the real estate transfer tax has been limited (since January 1, 2006) to: (a) the first sale of plots of land; (b) sale of old buildings; as well as to (c) the first sale of new buildings, if sold by a non-vatable person. By virtue of Law 3427/2005, the traditional transfer 60. Banking taxes introduced by the same Law (i.e., a special tax of 3 per cent on bank loans and of 8 per cent on the revenues of banks in Greece), have been abolished. 61. See, for example, the ECJ judgment in Commission of the European Communities v. the Hellenic Republic, Case No. C-426/98 [2002] ECR I-2793, regarding certain special charges imposed in favor of the Lawyers’ Fund on the formation of public and private limited liability companies, on the publication and alteration of their statutes and on the increase in their capital. The European Commission has already rendered a very recent proposal to the direction of gradual abolishment of this tax in Greece and several other member-states by 2010; see Proposal for a Council Directive concerning indirect taxes on the raising of capital, COM(2006) 760 final, December 4, 2006.

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tax was replaced – with the exceptions already mentioned – by a transaction tax (τέλος συναλλαγής, telos synallagis) for further transfer of real estate which was acquired after January 1, 2006. The transaction tax is equal to 1 per cent on the price payable by the purchaser. No other real estate transfer tax is due (see also capital gains tax, above, Section III D). Each time, taxable value is the objective market value or the purchase price, whichever is higher. D.

IMPORT DUTIES AND TAXES (δασμoί, dasmoi; φόροι εισαγωγής, foroi eisagogis)

Goods imported from other EU Member States are basically duty and tax-free, subject to minor exceptions. Imported goods from outside the EU are subject to the common customs tariff (CCT) and classified as per the Brussels Standard International Trade Classification of Commodities. The value of imported commodities for calculation of duties and taxes is determined based on CIF market price increased by taxes and expenses. The preferential treatment provided for countries or groups of countries by EU treaties (LOME, GSP, EFTA countries, Israel, etc.) is also applicable. Duty-free import of products for manufacturing and re-export is allowed. Storage of products in transit in free zones in Piraeus and Thessaloniki is also provided, while petroleum products may also be imported and stored in transit in ‘free customs zones’ until they are re-exported or, in certain cases, sold locally. Finally, refineries operating in Greece are subject to a special custom supervision. E.

OTHER TAXES

It would be wrong to create the impression that the above exhaust the list of indirect taxes. On the contrary, there are a great number of different taxes, some well-known (such as the taxes on car sales or imports and the circulation taxes on vehicles) and others less visible (such as the tax on alcohol and beer). They are, however, gradually being reduced. The law which introduced the VAT has abolished a substantial number of them. F.

RECAPITULATION OF TRANSACTION TAXES REAL ESTATE

ON

Real estate is the subject of many taxes on different occasions, apart from the income tax, the surtax and the stamp tax on rentals: (a) sale of newly-built (i.e., with building permits issued after January 1, 2006) houses (or apartments) is subject to VAT, when sold by a non-vatable person (or, otherwise, to transfer tax [FMA]); (b) sale of plot of land is subject to transfer tax, including the first transfer after January 1,

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2006; and (c) further transfer of houses (or apartments) or real estate in general is subject to transaction tax (TS) and capital gain tax (FAY). The following table recapitulates the applicable taxes in view of the changes which have recently occurred with the introduction of VAT: First transfer after January 1, 06 Category of real estate Land or old building of any kind New building. Building permit before January 06, 2001 New building. Building permit after January 06, 2001 New Antiparochi62 (on the value of the buildings)

Subsequent transfers

VAT

FMA

FAY

TS

NO

YES

YES

YES

NO

YES

YES

YES

YES

NO

YES

YES

YES

NO

YES

YES

V.

MUNICIPAL TAXES AND TAXES IN FAVOR OF THIRD PARTIES

A.

MUNICIPAL TAXES (δημοτικοί φóρoι, dimotikoi foroi)

The revenue of the municipalities is very meager as the municipalities have no independent power to impose taxation, while the taxes voted in by Parliament in their favor are occasional, do not secure equal opportunities or a continuous flow of income and are insufficient to cover their needs. In addition, local government authorities even when they have the authority to assess taxes, refrain from doing so, calculating the political cost and preferring to rely on central government for financing. The main sources of revenue for municipalities, apart from state subsidies, are the following taxes and fees: (a) cleaning and lighting fees (τέλη καθαριότητας και φωτισμού, teli kathariotitas kai fotismou), payable by the owners or users of buildings for the collection of rubbish and waste and for the lighting of streets; the amount is based on the size of the building; (b) fees for the use of streets, squares and pavements for any reason (normally by restaurants and cafes for placing tables outdoors); (c) real estate ownership duty (τέλος ακίνητης περιovσίας – TAΠ, telos 62.

Αντιπαροχή (antiparochi) is a system by which the owner of the land assigns the construction of a total building to a contractor at the latter’s expenses. In consideration, the contractor receives a number of apartments.

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akinitis periousias – TAP), currently calculated at a range 0.25 per cent to 0.35 per cent on the official objective (imputed) market value of the real estate property as such is defined according to the ‘area prices’ and the ‘age coefficient’ applicable on the respective property depending on the area the real estate is situated (see above, IV C); TAP burdens the owner of the real estate and is collected through the electricity bills by the Public Power Corporation (ΔEH, DEI), unless such bill is issued in the name of the tenant in which case TAP is paid by the latter and is deducted through the agreed monthly rental; (d) along with the real estate transfer tax (see above, Section IV C) a duty is due in favor of the local government authorities equal to 3 per cent on the amount of the tax; (e) tax on hotel and restaurant bills; (f) tax on building licenses and for the expansion or amendment of zoning variances; (g) annual tax on undeveloped real estate; (h) tax on advertisements; (i) tax of home space; and (j) tax on sales of beer. B.

TAXES IN FAVOR OF THIRD PARTIES (φóρoι υπέρ τρίτων, foroi yper triton)

Certain provisions impose numerous taxes in favor of third parties, such as the Lawyers’ Pension Fund, the Universities, the Hellenic Competition Commission, other funds and non-profit organizations. The constitutionality and fairness of these taxes have been repeatedly questioned as they enforce contributions to organizations which are not necessarily connected to the taxpayer. In addition most if not all of these taxes are incompatible to the common system of VAT, which does not allow for transaction taxes other than the VAT and the ones allowed by the VAT system. The trend is to eliminate this type of taxes, which is not an easy task as sometimes new taxes continue to be imposed in favor of third parties (see above, under A). VI.

ENFORCEMENT OF TAX LAWS – PENALTIES – LITIGATION

The operation of the tax system relies upon the reporting obligation of the taxpayer. The tax payable is computed on the basis of the tax returns submitted. The tax audit, which may follow, assesses additional taxes, if any, and penalties. Law 2523/1997 codified the surcharges and fines and also the criminal charges in case of violation of the tax legislation for most kinds of taxation. With regards to general obligations to pay tax, e.g. income tax, capital tax (donation, inheritance, real estate transfer tax, etc.), surcharges are 1 per cent, 2 per cent or 2.5 per cent per month, depending on the violation, and they are calculated on the tax evaded but in no case can they exceed 100 per cent or 200 per cent per case of the actual tax due; in case of VAT, turnover tax, tax withholdings or other duties and contributions surcharges are 1.5 per cent, 3 per cent or 3.5 per cent per month, depending on the case.

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In case no tax is imputed, independent penalties are imposed, which again vary depending on the gravity of the violation (between EUR 117.38–1,173.88, which may increase to approximately EUR 15,000 or EUR 30,000 in case of very severe violations;63 penalties for violation of the Code of Books and Data are specifically addressed, starting from approximately EUR 300 to 880 per violation).64 Criminal sanctions for tax evasion have become lately extremely severe, covering even technical failures. All enterprises have to undergo a regular audit. The inability of the tax authorities to meet the tremendous workload led to repeated tax amnesty laws allowing settlement of unaudited (and sometimes audited) tax returns upon payment of a predetermined amount of taxes. Because of the inability of the tax authorities to capture the tax material, obligations have been imposed on various professionals involved in transactions drawing taxation (notaries, accountants, etc.) and, more important, in case of legal entities the legal representative of the entity and/or the financial managers and accountants may bear personal liability in case of non-payment of certain taxes such as tax withholdings and VAT. The findings of the audit are incorporated in the ‘audit report’ (έκθεση ελέγχου, ekthesi elenchou) which is the basis of ‘tax assessment’ (φύλλο ελέγχου, fyllo elenchou) issued by the tax commissioner65 or any other competent authority (e.g., municipalities). The assessment may be appealed, within 60 days from its service, before the administrative district courts. Normally, the appeal (προσφυγή, prosfygi) suspends payment of 90 per cent of the total amount assessed (taxes and penalties). Total suspension may be sought from the court, which is granted if enforcement will cause irreparable damage to the taxpayer. The first instance court decision may be appealed (by both the taxpayer and the tax authorities) before the administrative court of appeals, but it is immediately enforceable in total. Ultimately, any legal issues may be brought to the Council of State.

63. Article 4 of Law 2523/1997. 64. Article 5 of Law 2523/1997. In case of repeated violation of the same kind the law provides for a special way of calculation. 65. The Tax Office in charge of following up the taxation over a certain territory is DOY (the acronym for Δημóσια Οικονομική Yπηρεσία, Dimosia Oikonomiki Ypiresia; Public Financial Service). Tax audits, however, are made by special ‘Auditing Centers’. Two DEKs (Διαπεριφερειακά Ελεγκτικά Κέντρα, Diaperifereiaka Elengtika Kentra; Intra-regional Auditing Centers), one in Athens and one in Thessaloniki, are in charge of auditing the major enterprises all over Greece; PEKs (Περιφερειακά Ελεγκτικά Κέντρα, Perifereiaka Elengktika Kentra; Regional Audit Centers) are in charge of the medium-size enterprises within their regional jurisdiction; TEKs (Τοπικά Ελεγκτικά Κέντρα, Topika Elengtika Kentra; Local Auditing Centers) are in charge of the small-size enterprises within their regional jurisdiction. There is also a Tax Financial Policing Service or YPEE (Yπηρεσία Eιδικώv Ελέγχων, Ypiresia Eidikon Elenchon; Service of Special Investigations) which replaced a similar service under the name of SDOE (Σώμα Δίωξης Οικονομικού Εγκλήματος, Soma Dioxis Oikonomikou Englimatos, Public Agency of Financial Investigations) having a national-wide jurisdiction for special audits.

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Litigation can be avoided if settlement is reached with the tax office. The possibility offered by the law for drastic reduction of penalties at that stage, compared with the alternative of immediate payment of 10 per cent of the total amount, the very long time required for finalization of litigation and the ever-present and totally justifiable ambiguity of the outcome of litigation, constitute major incentives for an out-of-court settlement, which of course has little to do with law and justice and does not promote the tax consciousness of the taxpayers. Still, though, it is a current reality. VII.

INVESTMENT INCENTIVES

A.

GENERAL

The population of Greece is approximately 11 million,66 living in an area of 132,000 sq. km of which nearly 25,000 sq. km consist of about 2,000 islands – small, medium, and large – scattered in the Ionian, Aegean and Cretan seas. Fourfifths of the country is mountainous, while more than three million inhabitants live in the greater Athens area and another one and half million in Thessaloniki and four other large cities. To encourage dispersion of industry throughout the countryside, a system of incentives has been established long before Greece joined the Communities67 and is maintained along the lines permitted by Community law. The current68 legislation (Law 3299/2004 as amended by Law 3522/2006) provides for: (a) capital aids in the form of cash grant; (b) leasing subsidy, which covers partial payment by the State of the installments relating to a lease which has been entered into for the use of new mechanical and other equipment (Law 1665/1986); (c) tax-free reserves; and (d) subsidies for the expenses of wages relating to the employment created by the investment. The last amendment (Law 3522/2006) has introduced a new form of aid, which can be granted in addition to regional investment aid, in order to provide incentives to support business start-ups and the early stage development of small enterprises in the assisted areas. The eligible expenses in such cases are legal, advisory, consultancy and administrative costs directly related to the creation of the enterprise, as well as the following costs, insofar as they are actually incurred within the first five years of the creation of the enterprise thereafter (Article 9 IV of Law 3299/2004). 66. The precise figure, according to the last census of 2001, is 10,964,020: , September 9, 2006. 67. See further J.C. Dryllerakis, Incentives for Industrial Investments (Athens, 1979) [in Greek]. 68. Previous global legislation of grants consisted of Laws 1134/1981, 1262/1982, 1892/1990 and 2601/1998. Most of these laws are still applicable and regulate investments implemented under their regime. The current regime of Law 3299/2004 has been very recently revised (Law 3522/2006), according to the new EU framework on regional state aid for 2007–2013.

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DEVELOPMENT REGIONS AND QUALIFYING INVESTMENTS

For the purposes of differentiating the available regional development aids, Greece is divided into three main regions. In general lines, region A includes the developed districts of Attica and Thessaloniki, while region B includes several semideveloped districts throughout Greece. The remaining districts constitute region C, depending on the degree of development of these areas. It must be noted that, in contrast to the pre-existing incentives legislation (Law 2601/1998), the distinction, and the respective different treatment, between start-up and already established enterprises, considered as a form of discrimination, has been abolished. Only ‘new investments’ or ‘integrated business plans’ made in certain defined ‘activities’ are eligible for the incentives of the law. Eligible investments include buildings, machinery and equipment, computers and automation systems, installations and miscellaneous expenditures. Land, passenger cars up to six seats and office furniture and equipment are excluded. The ‘activities’ qualifying for aids are divided into four main categories: (a) certain activities in the primary sector (agricultural, cattle-breeding and fishing enterprises of advanced technology, etc.); (b) manufacturing, mining and natural resources activities; (c) tourism (hotels, camping sites, spas, winter tourism centers); and (d) activities in the services sector, such as logistics, software, R&D, broadband networking, etc. For reasons of social and economic policy, special favorable provisions apply to the treatment of investments involving energy conservation, environmental protection and/or adoption of innovative technological methods. Sizable investment projects (beyond a EUR 50 million budget) may also be granted, under certain conditions, additional incentives, in deviation from the normal provisions of law. C.

CAPITAL AID (επιχορήγηση, epichorigisi), LEASING SUBSIDY (επιδότηση χρηματοδοτικής μισθωσης, epidotisi chrimatodotikis misthosis), WAGES SUBSIDY (επιδότηση απασχóλησης, epidotisi apascholisis)

The capital aids range between 15 and 40 per cent of the value of the subsidized investment, depending on the region as well as on the type of activity and its contribution to the national economy. Investments made by certain categories of enterprises (e.g. small and medium-sized enterprises, SMEs) qualify for an additional aid, ranging from 10 to 20 per cent. Both the aid granted and the mandatory self-financing are calculated on the total amount of the investment, while the cumulative sum of aid received by the same enterprise within a five-year period may not exceed the level of EUR 20 million. The leasing subsidy is proportionally equal to the capital aid which the enterprise is entitled to receive; for example, should the capital aid be determined at 20 per cent of the value of the investment, 20 per cent of the payable installments are covered.

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Subsidies for the expenses of wages also range from 15 to 40 per cent, depending on the region. The aforesaid provisions for additional aid apply equally also in this case. Unlike the leasing subsidy, which may be combined with cash grant subsidies, subsidies for the expenses of wages may not be cumulative with any of the aforesaid forms (capital aid, leasing subsidy). D.

REQUIREMENTS FOR CAPITAL AIDS

The aids are granted by a decision of the competent governmental authority (Ministry of Finance or Ministry of Development or general secretariat of the Regions) and are not automatically available to eligible enterprises. The decision defines the amount of aid and particular terms and conditions which apply to the investment. Two basic requirements are that the investor must provide share capital to finance at least 25 per cent of the investment. Dissolution of the enterprise or transfer of assets of subsidized investments are not allowed without prior ministerial approval throughout the first five years after the completion of the investment. The new Law 3522/2006 has simplified the procedure to be followed in case of transfer of shares, i.e. by requiring only notification of the transfer. Thus, the previous requirement of a ministerial approval has been now abolished. E.

TAX-FREE RESERVES (αφορολόγητα αποθεματικά, aforologita apothematika)

An enterprise making a ‘new investment’ or undertaking an ‘integrated business plan’ in any of the special ‘activities’ identified in the law (see above, under B) qualifies for a ‘tax-free reserve’,69 which is a deduction from its taxable profits of an amount equal to a certain percentage of the expenditure of part of the investment. This amount is kept as a special non-taxable reserve and its taxation is suspended until its distribution on the sale of the corresponding assets. The size of the annual reserve varies, depending on two factors: the cost of the investment and the region in which it is made. The allowance (and the corresponding reserve) may not exceed a percentage of the investment, ranging from 50 to 100 per cent, depending on the region. The aforesaid deduction refers to the total profits of the enterprise, deriving from any of its activities all over Greece, whether eligible (see above, under B) or not. Any balance of the allowance not covered by the above percentages may be carried forward to future years. Unlike the capital aids which require prior approval by the competent governmental authority, tax-free reserves can be utilized by all eligible enterprises for their 69. The previous incentives legislation (Law 1892/1990) provided a further option for accelerated and free depreciation of certain fixed assets under several terms and conditions. This option was later abolished (Law 2601/1998) and does not apply under the incentives legislation currently in force (Law 3299/2004).

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qualified investments without any prior approval by any governmental authority (automatic application). Aids, however, are incompatible and may not be cumulative with tax-free reserves, while depreciations (single, accelerated or free) are calculated on the value of the assets, reduced by the aid granted for their acquisition. F.

OTHER INVESTMENT INCENTIVES

Law Decree 2687/1953 authorizes the Government to grant certain privileges to investments made with imported foreign capital. This law is endowed with constitutional power and prevails over common statutes (i.e., neither this law nor the ministerial approvals issued on its basis can be amended by legislation). All major investments made in Greece had been protected under this law. Its main advantages were the repatriation of loan or share capital (up to 10 per cent annually), cumulative remittance of profits (up to 12 per cent, net of tax, on the imported and non-repatriated capital), and remittance of interest (up to 10 per cent). Following the complete liberalization of capital movements by virtue of Presidential Decree 207/1987 in compliance with Community Directives,70 a direct investment from a EU Member State qualifies for full remittance of profits and repatriation of the proceeds of liquidation. This law therefore has fallen into disuse. In the last decade it was utilized in three cases only, again not for granting any privileges but mainly for securing that concessions given could not be amended by any legal act. Necessity Laws 89/1967 and 378/1968, as amended by Law 3427/2005, constitute incentives for foreign companies to proceed with an establishment in Greece, while Law 27/1975 regulating taxation of shipping enterprises in a favorable way, appropriate for the peculiarity of their operation and the international conditions, gives incentives for ship-owners to raise the Greek flag on their ships. BIBLIOGRAPHY There are few general works in the Greek language about taxation, while there are many works pertaining to special parts of tax law (stamp tax, transfer tax, tax books and data, etc.) with practical orientation. The Bulletin of Tax Legislation (Δελτίο Φορολογικής Νομοθεσίας, Deltio Forologikis Nomothesias) is an authoritative fortnightly review of tax legislation and judicial decisions as well as of administrative practice. The Accountant (Λογιστής, Logistis), the Enterprise (Επιχείρηση, Epihirisi) and the Bulletin of Companies and Enterprises (Δελτίο Επιχειρήσεων και Εταιριών, Deltio Epihiriseon kai Etairion; DEE) follow up tax legislation, jurisprudence and theory. 70. First Directive of May 11, 1960 for the implementation of Article 67 of the Treaty, OJ 43/921– 932, 1960; Council Directive 63/21 of December 18, 1962 adding to and amending the First Directive, OJ 9/62–74, 1963; and Council Directive 86/566 of November 17, 1986 amending the First Directive, OJ L 332/22, 1986.

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J. Anastopoulos, Public Subsidies of the Economy (Athens-Komotini, 1982). J. Anastopoulos and Th. Fortsakis, Tax Law (2nd edn, Athens-Komotini, 2003). A. Antapassis, The System of Income Taxation on Greek Ships (Athens-Komotini, 2001). N. Barbas, Direct Taxation and Community Law (Athens, 2005). N. Barbas, Income Taxation of Natural Persons and Legal Entities (Athens, 2006). N. Chatzitzanis, Manual of the General Principles of Tax Law (Athens-Komotini, 1991). P.D. Dagtoglou, Procedural Administrative Law (2nd edn, Athens-Komotini, 1994). J.C. Dryllerakis, Investment and Protection of Foreign Capital (Athens, 1975). J.C. Dryllerakis, Incentives for Industrial Investments (Athens, 1979). J.C. Dryllerakis, Liberalization of Capital Movement (Athens, 1988). J.C. Dryllerakis, Investment Incentives. Laws 3299/2004 and 2601/1998 (2nd edn, Athens, 2005). K. Finokaliotis, Constitutional Guarantees of the Legality and Certainty of Taxes and of Prohibition of the Retroactivity of Tax Laws (Athens-Komotini, 1984). J. Fotopoulos, Tax on Automatic Over-value (Athens, 1995). J. Fotopoulos, Tax on Real Estate, vols I–II (2nd edn, Athens, 1999). J. Fotopoulos, Estate and Gift Taxes (4th edn, Athens, 2001). M. Kypraios, Elements of Tax Law (Athens-Komotini, 1980). E. Papadopoulos, Tax Data Code, vols I–III (Athens, 1980). P. Reppas, Stamp Tax (Athens, 2005). A. Roussaki, VAT Commentary, vols I–II (Athens, 2002). E. Spiliotopoulos, Administrative Law (11th edn, Athens-Komotini, 2005). D. Stamatopoulos, Code of Books and Data, vols I–III (Athens, 2005). L. Theocharopoulos, Tax Law. General Part (Athens, 1981); Special Part (Thessaloniki, 1999). N. Totsis and K. Totsis, Income Taxation, vols I–III (Athens, 2000). C. Yiannopoulos, Tax Treatment of Ships Under Construction (Athens, 2003). Works in English and other languages on special subjects can be found in the Cahiers de droit fiscal international of the International Fiscal Association. There is a BNA Tax Management Portfolio on Greece which is kept reasonably current. The American Hellenic Institute of New York has published in two loose-leaf volumes a Guide for Doing Business in Greece which is in the process of being updated. Reference should also be made to the various Doing Business in Greece guides published and updated by the major accounting firms.

Chapter 20

Criminal Law and Procedure Dionysios D. Spinellis*

I.

HISTORICAL DEVELOPMENT AND SOURCES

During the Greek War of Independence (1821–1829), a first effort was made to draw up a codified law governing criminal matters (1823). However, this resulted in a rather unsystematic and incomplete enactment, which was applied only for a short period. It was replaced by the Penal Law of 1833 and the Criminal Procedure Act of 1834. After being applied for more than a century and amended several times, these two Codes were in their turn replaced by the Penal Code and the Code of Criminal Procedure of 1950, which entered into force on January 1, 1951. Apart from these two codifications, however, a great number of special statutes containing penal provisions exist. Among them is the Code of Traffic Regulations, the Code of Market Regulations, the Military Penal Code, several laws governing labor matters, the laws on drugs, firearms, antiquities, etc. According to the statistics, out of the total number of convictions for crimes and misdemeanors, a substantial majority (79.2 per cent) concerned offenses criminalized in such special statutes.1

* Professor of Law (emer.), University of Athens. 1. The latest information dates to 2003 and has been retrieved from , 5 December 2006; it does not differ substantially from previous data published in 1996, which revealed a similar percentage, i.e. 74.3 per cent. Konstantinos D. Kerameus and Phaedon J. Kozyris, Introduction to Greek Law, pp. 459–487. © 2008, Kluwer Law International BV, The Netherlands.

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The Penal Code (PC), following the Continental European tradition, is divided into a General Part and a Special Part. While the former includes the provisions applicable to all offenses or to abstract categories of them, the latter comprises the definitions of the various offenses and the penal sanctions provided for each of them. It should be noted that the provisions of the General Part are also applicable to the offenses provided in the special penal statutes, unless otherwise provided therein (Art. 12 PC). II.

SUBSTANTIVE CRIMINAL LAW

A.

GENERAL PRINCIPLES

1.

The Two Functions of Criminal Law

Greek criminal law, like the similar laws of other countries, is meant to fulfill two functions. Its primary function is to protect the legal interests of the individual and of the community from certain harmful forms of behavior. It is considered that penal provisions can achieve this goal first by influencing the public at large so that it will abstain from such forms of behavior (general prevention: deterrence, moral and social education); then by deterring the individual perpetrator of a criminal offense in various ways (special prevention: individual intimidation, reform, rehabilitation, incapacitation) so that he will not commit any more offenses in the future. It is obvious that this function of penal law corresponds to relative and utilitarian theories of punishment. However, retribution, although not considered as the purpose of punishment, is recognized as a useful upper limit to it: penalty for an offense shall not exceed the proportions of what is deemed a just retribution for it. This limit must be taken into consideration both by the legislator when introducing penal provisions and by the courts when imposing penal sanctions. The second function of penal law is a derivative one: while criminal punishment is considered as having the greatest coercive leverage, it is also the most painful means of coercion. Therefore, Greek penal law includes a series of guaranties to protect the individual from abuses connected with the exercise of its primary function. The most important such guaranty is the principle nullum crimen, nulla poena sine lege. 2.

The Nullum Crimen, Nulla Poena Sine Lege Principle

This principle is consecrated in Article 7 I Const., and is also included in Article 1 PC. The constitutional provision reads as follows: There shall be no crime nor shall punishment be inflicted unless provided by law in force prior to the perpetration of the act, defining the constitutive elements of the act. In no case shall punishment more severe than that provided at the time of perpetration of the act be inflicted.

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From this provision, the following more specific principles are deduced: (a) A penal law must be written (statutory) law. No penalty may be based on customary law or on judge-made law. This is no obstacle, however, to the proper interpretation of statutes by the courts. (b) No penalty may be imposed in application by analogy of a penal law not directly applicable to the particular case. (c) No penalty may be imposed on the basis of a penal law not describing specifically the criminal behavior and not providing the applicable penal sanctions within upper and lower limits. (d) Penal laws have no retroactive effect. It should be noted that while criminal liability cannot be founded or made more severe where the above principles do not so permit, it may be excluded or mitigated even if the conditions under (a)–(d) are not fulfilled: grounds for exclusion or mitigation of criminal liability may be based on custom, on inference by analogy, and on retroactive recent laws. It is expressly provided (Art. 2 PC) that, if between the perpetration of a criminal act and the passing of final judgment thereon, more than one legal rule were in effect, the most lenient one shall be applied. 3.

Jurisdiction of the Greek State in Penal Matters

The (legislative, judicial, or enforcement) jurisdiction of the Greek State in penal matters is based on six of the principles known in international penal law. More specifically, Greek penal laws are applicable to: (a) All offenses committed by any person in the Greek territory, which includes Greek vessels and aircraft (territoriality principle; Art. 5 PC). It should be noted that an offense is deemed to have been committed both in the place where the act has taken place, totally or partly, and the place where the punishable result has, or should have, occurred (Art. 16 PC); (b) Furthermore, the Greek penal laws apply to the following categories of offenses committed abroad (extraterritorial jurisdiction): (i) Felonies and misdemeanors committed by persons who at the time of the act were, or have become later, Greek nationals (active nationality principle; Art. 6 PC). (ii) Felonies and misdemeanors committed against a Greek citizen (passive nationality principle; Art. 7 PC). In cases (i) and (ii) above, the act must also be punishable under the laws of the country where it was committed (double criminality principle). (iii) Offenses affecting vital interests of the Greek State, such as security, integrity, sovereignty or governmental function (principle of protection; Art. 8(a)–(e) PC). (iv) Offenses which any country may prosecute, such as piracy, currency-related offenses, trafficking of persons for sexual exploitation or illicit trafficking of narcotic drugs (universal jurisdiction principle; Art. 8(f)–(j) PC). (v) Any other offenses for which international conventions, ratified by Greek laws, provide the application of Greek penal laws, usually in case extradition

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B.

THE STRUCTURE OF THE CRIMINAL OFFENSE

1.

The Definition and Elements of an Offense

Article 14 I PC defines a criminal offense in the following way: an offense is (a) an act; (b) illegal; (c) imputable to the offender; and (d) punishable under the law. These elements are discussed below. 2.

An Act or Omission

As an act is considered any external and voluntary human conduct. Therefore, bad thoughts alone cannot constitute a crime. Since the conduct must be human, a criminal offense cannot be committed by or attributed to a legal entity, such as a corporation. Although in some provisions of international instruments concluded within the framework of the EU the liability of legal entities is provided (e.g., Art. 3 of the Second Protocol to the Convention on the Protection of the European Communities’ Financial Interests of 19972), it is strongly claimed that under the Greek legal system such liability should be considered only as administrative. The law specifies that the term ‘act’ also includes omissions (Art. 14 II PC). Some statutory crimes are specifically defined as omissions to act, e.g., failure to save someone’s life (Art. 307 PC). In other cases, the statute requires a certain result, for example the death of a person; in such cases, the criminal conduct need not be an act causing the result but may be a failure to prevent it whenever the offender had a special legal duty to act (Art. 15 PC). For instance, failure to save a child’s life may constitute murder if the defendant had such a duty based upon statute (e.g., parent), contract (e.g., teacher), voluntary assumption of care, or the prior creation of a peril. 3.

An Outline of the Method of Analysis

Greek criminal law theory, like that in some other countries, is characterized by a tripartite analysis. Whether an act or omission may be a criminal offense must be examined from three different viewpoints in three consecutive steps. First, does it fall within the definition of a statutory offense and thus constitute prima facie an offense? If it does, in the second step it is examined whether a justification exists, in which case the analysis stops here. A prosecutor would 2.

Ratified by Law 2803/2000, GG A 48.

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not prosecute the person concerned; a court would acquit the accused. If no justification exists, then the act or omission is considered illegal. An illegal act is not necessarily a punishable one, as we will see, but the illegality may have other legal consequences; for instance, it may be countered with self-defense; or the offender, although he is not criminally responsible by reason of insanity, may be committed to a mental institution; or it is a condition for accomplice liability. In the third step, the analysis is focused on the person of the offender in order to find whether any grounds exist which exclude his imputability or his guilt. To the above basic three steps a fourth one may be added in which it is examined whether there exist any grounds preventing punishment, even for a complete criminal offense. Such grounds are the statute of limitations, immunity and amnesty. 4.

Justification

The Penal Code includes several grounds of justification, some of which are provided in the General Part and others in the Special Part. The most important ones are: (a) Exercise of right or fulfillment of legal duty (Art. 20 PC): an act is justified if it consists in the exercise of a right (e.g., the right of the possessor, provided by the law, to recover a stolen object) or the fulfillment of a legal duty (e.g., the duty of a police officer to use reasonable force to make a lawful arrest). (b) Self-defense or defense of another: under Article 22 PC, an act constituting prima facie an offense is justified if it was necessary to defend the person or the property of the perpetrator or of another person against an unjustified and present aggression. The amount of force permitted to be used against the aggressor depends on the value of the threatened harm, the degree of danger and other circumstances. If the perpetrator exceeded the above limits of defense, he is punished. In the event that the excess was intentional, the punishment is that for the offense committed, mitigated according to Article 83 PC. If it was due to negligence, then the offense is punished to the extent that such an offense is punishable when committed by negligence (Art. 23 PC). But if the perpetrator intentionally provoked the aggression in order to commit the offense under the pretext of selfdefense, he is subjected to the normal penalty for this offense (Art. 24). (c) Necessity justifying the act (Art. 25 PC): an act is justified if committed in order to prevent a harm threatening, through no fault of the perpetrator, his person or his property or those of another person. The harm prevented must be substantially greater than the one produced by his act. If the perpetrator exceeded the limits of harm permitted, the provision pertaining to excess of defense (see above, under (b)) also applies here. (d) An order by a superior justifies the act of an inferior civil servant or soldier, if and to the extent that the law does not permit him to examine the legality of the order. In such a case, only the superior is punished (Art. 21 PC).

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Dionysios D. Spinellis (e) The consent of the victim in some cases negates an element of the offense, and then not even a prima facie offense exists: for example, illegal imprisonment, rape or theft. In other cases, the consent of the victim has no influence on the legal situation at all, for example in murder or serious bodily injury. But there are some offenses where the consent of the victim justifies the prima facie offense. The Penal Code provides this rule expressly only with respect to simple bodily injury (Art. 308 II); it is also applied by analogy to other offenses where the victim can dispose of the legal interest protected, for example defamation, verbal injury or intentional damage to property.

5.

Imputability and Guilt

According to the Greek doctrine, imputability (καταλογισμός, katalogismos) is a judgment by which a person is blamed for something and therefore he is disapproved and becomes personally responsible for his act. Guilt (ενοχή, enochi) is called whatever circumstance, concerning the person of the offender, justifies such a disapproval. In Greek criminal law, the ‘principle of imputability’ or ‘principle of guilt’ is of great importance. It is based on Article 2 I Const. which requires the State to respect and protect human dignity. By this principle, no penalty may be imposed for a criminal offense unless the offender can be blamed for such offense. Therefore, Greek criminal law does not recognize any cases of strict or absolute liability. 6.

The Elements of Imputability

The prevailing classification in the Greek criminal law doctrine includes three elements within the realm of imputability: (a) capacity to appreciate and conform; (b) mental culpability (subjective fault); and (c) possibility to behave differently, or lack of reasons of excuse. (a)

Capacity to Appreciate and Conform

Two tests are included here: firstly the defendant’s capacity to appreciate the illegality of his act, and secondly his capacity to conform his conduct to the requirements of the laws in case he appreciated them. (i) Minors: the law takes for granted that children of up to 13 years of age do not have the above capacities and therefore are not criminally liable. However, children of eight to 13 years may be subjected to educative or therapeutic measures (Art. 126 II PC; see below, under D 2). Adolescents of 13 to 18 years of age are also presumed not to have the above capacities and, as a rule, only educative and therapeutic measures may be imposed on them. But the court may sometimes rule that they are criminally responsible; in such cases, it imposes the special penalty of confinement in a correctional institution for young persons (Art. 127 PC).

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(ii) Adults: with respect to adults, the opposite presumption applies. They are deemed criminally responsible except in cases provided by law. These cases may also concern minors, but minority, as we have seen, is in itself a ground against criminal responsibility. The exceptional cases are: (a) mental insanity (psychosis, neurosis, organic brain disorder, congenital intellectual deficiency); (b) disturbance of conscience (unconsciousness, semi-consciousness, intoxication); or (c) deaf-muteness, provided that, due to one of these conditions, the offender was deprived of the capacity to appreciate the illegality of his act or to conform his conduct to the requirements of the law in accordance with his appreciation of such illegality (Arts 33, 34 PC). (b)

Mental Culpability

Culpability is the state of mind of the offender toward his offense, due to which he is considered as its mental cause. Greek criminal law provides two basic forms of culpability: (i) intention and (ii) negligence. (i) Intention: Intention comprises the offender’s knowledge of the material elements of a criminal offense (physical conduct, result, circumstances) and his will or acceptance that his act causes the consequences included in these elements (Art. 27 PC). Physical elements of the crime and state of mind must concur at the same time. If the knowledge at that time does not include certain elements, then a mistake of fact exists (see below, under (iii)). The will to produce the consequences appears in the following variations: (a) intent or purpose: the offender aims at causing the consequences (e.g. A shoots B in order to kill him); (b) acceptance by the offender of a consequence as the necessary by-product of his intended act (e.g. A places a time-bomb in an airplane in order to kill B, also accepting to kill all the other passengers); and (c) acceptance of the consequence as a possible by-product of his intended conduct (Art. 27 II PC: e.g. A burns his own building with intent to defraud an insurance company; he accepts the possibility that an invalid living there may perish). As a rule, in all offenses which by definition must be committed with intention, any of the three variations is sufficient. In some offenses, however, the law requires only the first, or alternatively the first or the second variation. (ii) Negligence: According to Article 28 PC, negligence consists of lack of care or circumspection, because of which the offender: either (a) did not foresee the consequence of his conduct at all (negligence without realization of risk); or (b) foresaw this consequence as possible but trusted that it would not occur (negligence with realization of risk). When negligence as a state of mind exists, it is accompanied by a violation of a standard of conduct.

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Dionysios D. Spinellis The law sets two criteria for care and circumspection. First, care and circumspection due according to the circumstances. Thereby, the rules and standards of the average diligent person in the relevant branch of social activity are taken into account. If the offender has shown such an amount of care and circumspection, no negligence exists. Any harm caused in spite of his care is considered as fortuitous. If, however, the offender has fallen below such standards, then it must be examined whether he could have complied with them in view of his personal circumstances and capabilities. If he could not, then he is not responsible (e.g. a surgeon during an operation is required to use all antiseptic means; but if he carries out an urgent operation at the site of an accident where no such means are available, he cannot be considered as negligent). (iii) Ignorance or Mistake of Fact: As we have mentioned, if the offender did not have knowledge of certain facts or circumstances which constitute material elements of the offense committed by him, he has no intention; therefore his offense cannot be imputed to him as an intentional offense (Art. 30 PC). If he knew the elements of the basic form of an offense but not the additional elements which give it an aggravated form, only the basic form is imputed to him; e.g. A knows that he is entering a building without being entitled to and steals. He ignores, however, that this building is a church or a museum. Therefore he is responsible for simple theft (Art. 372 PC) and not for aggravated theft (Art. 374 PC). If the ignorance of elements of an offense may be attributed to the negligence of the perpetrator, then he is responsible for an offense by negligence, if such an offense is provided by law; for example, A shoots B who is working in the bushes of a garden, thinking that B is game. A is not liable for intentional homicide but may be liable for criminally negligent manslaughter.

(c)

Human Possibility to Comply With the Law

The impossibility of an offender (i) to appreciate the illegality of his act and (ii) to conform his conduct to the requirements of the law may be due to the particular circumstances of each case. (i) Appreciation of the Illegality – Ignorance or Mistake of Law: According to Article 31 I PC, the fact that the perpetrator, although knowing that his act was illegal, was just ignorant that it was also punishable under the law, does not exclude imputability and, therefore, is not a defense. Imputability is only excluded when the offender, due to ignorance or mistake, believed that it was permitted to him to commit the offense. The law provides, however, that this ignorance or mistake must be excusable (Art. 30 II PC). Whether this is the case is usually assessed according to the circumstances. (ii) Possibility to Conform: Grounds of Excuse: A perpetrator who is generally capable of appreciating the illegality of his act and of conforming his conduct to the requirements of the law, may commit a criminal act

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because he was exceptionally operating under certain circumstances which created such a mental or emotional condition within him that he could not be expected to behave differently. The Penal Code does not include a general rule governing such conditions but only provides for certain standard situations which usually create the above mental or emotional condition. In these situations, it is ‘presumed’ that the perpetrator could not behave differently. The most important of such cases are the following: (a) Necessity as an excuse (Art. 32 PC): a perpetrator is excused and the act is not imputed to him if it was committed in order to prevent a harm threatening, through no fault of such perpetrator, the person or the property of himself or of a close relative. In this case, the harm prevented must not be disproportionate to the one caused. As we see, necessity as an excuse differs from necessity as justification (see above, under 4 (c)) as to the circle of persons threatened by harm and as to the proportion between harm caused and harm prevented. (b) Excusable excess of the limits of defense: under Article 23 II PC, if the excess of the limits of defense (see above, under 4 (b)) was the result of fear or confusion caused to the perpetrator by the attack, such excess is not imputed to him and he is not punished. 7.

Grounds for Non-punishment

An act that is punishable under the law, illegal and imputable to the offender, is a criminal offense. The person who committed it may be prosecuted and punished. However, the law provides several grounds where this is not done. A general rationale for abstaining from punishment in particular cases is that such punishment would not be socially necessary, or that it may be contrary to other social expediencies. Some of these grounds are: (a) Grounds related to the important office held by the offender, e.g. certain immunities of the President of the Republic or of Members of Parliament. (b) Grounds extinguishing the right of the state to punish. These are: (i) the statute of limitations; (ii) voluntary desisting from an attempt; (iii) practical repentance after the crime (e.g., return of stolen property); (iv) amnesty; and (v) waiver of complaint. It should be noted that, although the prosecution of offences in Greece is mandatory, in some cases a complaint of the victim is a necessary condition of the prosecution, e.g. in the offences of seduction of a minor, theft by a close relative or defamation. If the complaint is not submitted within three months, the right to punish is extinguished. C.

SPECIAL FORMS OF CRIME

Greek criminal law doctrine considers attempt (uncompleted crime) and accomplice liability (i.e., more parties to a crime) as special forms in which a crime may

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appear. Accumulation of offences leading to concurrent sentences is considered as a third such form, and is discussed below under D 3. 1.

Attempt

Article 42 PC provides that attempt (απόπειρα, apopeira) of any felony or misdemeanor (see below, under D 1) is punishable by a reduced penalty (Art. 83 PC). Attempt presupposes intent to commit an offense and an act which may be considered as (only) the commencement of such offense. Therefore, attempt is not conceivable in offenses involving negligence. Under Article 43 PC, in case of factual impossibility (e.g., shooting with intent to kill while the victim was already dead), the penalty is further reduced; but if the impossibility was due to the stupidity of the perpetrator (e.g., attempting to kill by using magic words), the attempt is not punished. With respect to the abandonment of an attempted offense, the law provides that the offender is not punished if he has started an act toward the commission of the offense but abandoned it on his own free will (moral motives are not necessary) and not due to external obstacles. If, however, the offender has finished his act but later prevented the harmful consequence that was part of the offense, he is punished by the penalty of the attempt once more reduced; but the court may even decide not to punish (Art. 45 PC). 2.

Accomplices

Greek criminal law follows the system of distinction between principals and accessories. The parties to a crime are the following: (a) The principal or actor (αυτουργός, autourgos), who committed in whole or in part the act or omission constituting the offense as defined in the law. There can be more than one principal (Art. 45 PC). (b) The instigator of a principal (ηθικός αυτουργός, ithikos autourgos), who has intentionally brought about the decision of the principal to commit the crime (Art. 46 PC), for example the person who paid a professional killer to commit a murder. (c) The direct accessory (άμεσος συνεργός, amesos synergos), who intentionally assisted the actor directly in and during the commission of the crime. (d) The simple accessory (απλóς συvεργóς, aplos synergos), who intentionally aided another in any way before or during the commission of the offense. The accomplice liability of persons (b)–(d) depends on the commission by the principal of an illegal act, punishable under the law but not necessarily imputable to the offender. Therefore, accomplices are liable even if the offender is not punished due to mental insanity, mistake of law, or a ground of excuse (see Art. 48 PC). Persons (a)–(c) are punishable with the same penalty, i.e. the one

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provided for the principal. The simple accessory is punished by a lesser penalty (Art. 47 I PC). D.

PENAL SANCTIONS

The Penal Code follows a bifurcated system of sanctions, which includes penalties and security measures. Penalties are imposed only on criminally responsible offenders for offenses imputable to them. Measures of security are imposed firstly, as substitutes for penalties, to persons who are not criminally responsible, and secondly, to persons criminally responsible in addition to penalties (supplementary measures). The rationale for imposing measures of security is the danger emanating from certain persons or objects. 1.

Penalties (ποινές, poines)

The following main penalties are recognized: (a) The death penalty had been previously provided for very few serious offenses (Arts 50, 86 PC) and – with one exception – alternatively with the term for life. However, it had not been executed since 1972 and was finally abolished by Article 33 of Law 2172/1993 and by Law 2610/1998 (GG A 110) ratifying Protocol 6 to the European Convention of Human Rights and Fundamental Freedoms. It was still provided, however, as to certain offenses of the Military Penal Code, but it was also abolished by Law 3289/2004. (b) Custodial penalties. These are: (i) term for life (ισόβια κάθειρξη, isovia katheirxi); (ii) temporary term (5–20 years; πρόσκαιρη κάθειρξη; proskairi katheirxi); (iii) imprisonment (ten days to five years; κράτηση, kratisi); and (iv) jailing (one day to one month; φυλάκιση, fylakisi). The law also provides certain special custodial penalties for habitual criminals, for dangerous criminals with reduced criminal responsibility, and for adolescents. (c) Pecuniary penalties. There are two kinds: (i) the pecuniary penalty proper (EUR 150–15,000);3 χρηματική ποινή, chrimatiki poini); and (ii) the fine (EUR 29–590; πρόστιμο, prostimo). Some special penal laws provide for much higher amounts, e.g. Law 1729/1987 on the suppression of the propagation of narcotics provides pecuniary penalties of up to GRD 200,000,000 (= EUR 586,940.57). (d) Supplementary penalties. They always presuppose a main penalty and are as follows: (i) deprivation of civil rights (permanent or temporary); 3. Article 5 of Law 2943/2001 provides for the conversion of sums in drachmas into euros. According to that method the sum of GRD 200,000,000, which was initially provided in the Law, has been converted into EUR 587,000. Similar calculations have been made in relation to the conversion of all penalties from drachmas to euros.

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Dionysios D. Spinellis (ii) prohibition to exercise a profession; (iii) publication of the conviction; and (iv) confiscation of the instruments or products of crime. Special penal laws also provide for certain offenses special penalties, for example the deprivation of the driving license.

On the basis of the penalties imposable on them, offenses are classified into three categories: (a) an offense punishable by a term for life or temporary term (5–20 years) is called a felony (κακούργημα, kakourgima); (b) an offense punishable by imprisonment or pecuniary penalty is called a misdemeanour (πλημμέλημα, plimmelima); and (c) an offense punishable by jailing or fine is called a petty violation (πταίσμα, ptaisma) (Art. 18 PC). 2.

Measures of Security (μέτρα ασφαλείας, metra asfaleias)

Measures of security in substitution for penalties are: (a) confinement of noncriminally responsible but dangerous offenders in psychiatric institutions; and (b) educative and therapeutic measures applied to minors. Supplementary measures of security are: (a) reference of alcoholics and drug addicts to a therapeutic institution; (b) reference of persons who have an aversion to work and a tendency to an irregular life to a workhouse; (c) prohibition of residence in certain areas; (d) deportation of alien criminals after their release from prison; and (e) confiscation of dangerous objects (e.g. explosives, counterfeit money, drugs), irrespective of ownership. For minors, special educative and therapeutic measures are also provided (Arts 122, 123 PC). 3.

Sentencing

The Penal Code includes several articles providing how a court shall fix the sentence within the limits set forth in the provisions of the Special Part and the special penal laws. Among them, the most important is Article 79 which provides that the court in sentencing must consider: (a) the gravity of the offense committed; and (b) the personality of the offender. Under each of these two concepts, the law states what circumstances must be considered in particular. It is also provided that the court must set forth in its sentence the reasons justifying its decision as to the imposed punishment (Art. 79 IV). In practice, however, Areios Pagos has held that a general mention of the terms used by the law is sufficient without any specific reference to particular circumstances. According to Article 82 PC, all custodial penalties not exceeding one year, as a rule, must be converted into pecuniary penalties. The court may do the same with respect to penalties of up to two years, if it finds that the defendant’s incarceration is not necessary. The courts apply these possibilities in most cases, so that out of the total number of custodial sentences imposed, only approximately 3 per cent are executed in prisons. Articles 99–104 PC provide for the suspension of sentences of first offenders, which do not exceed 18 months. Such suspension is granted in approximately

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12 per cent of cases. Articles 88 and 93 PC define a recidivist as a person who, after being convicted for a felony or misdemeanor to a certain punishment, commits a new similar offense within a certain period of time provided in the law. More severe punishments are imposed to recidivists according to certain scales. In case of accumulated offenses (i.e. more than one distinct offense, committed either by a single act or by several acts) for which the court must pass concurrent sentences, Article 94 PC provides the following procedure: after determining the sentence for each one of them, the court proceeds to fix a compound sentence which is composed of the severest of the concurrent sentences (or one of them in case they are equal), increased in consideration of the others according to a certain scale in the case of several acts; while in the case of more offenses by a single act the court increases the severest sentence according to its discretion up to the maximum limit of the relevant kind of penalty (e.g. total imprisonment may be increased up to five years). E.

SPECIAL PART

In this section, some characteristics of certain important offenses provided in the Special Part are discussed. 1.

Homicide (ανθρωποκτονία, anthropoktonia)

Article 299 PC provides for two forms of intentional homicide: (a) Murder, and (b) Heat-of-passion homicide. Murder is characterized only by the lack of heat of passion. Other criteria, such as premeditation or immoral motives, do not exist under Greek law. We should bear in mind, however, that the abolished Article 86 PC provided for ‘hideous act’ circumstances as a condition for imposing the, now abrogated, death penalty. The law provides further for the following mitigated forms of homicide: (c) Homicide with consent of the victim (Art. 300 PC). This provision is applied only if the offender acted after a serious and persistent demand of the victim, who was incurably suffering, and out of compassion for such victim. (d) Accomplicity to a suicide (Art. 301 PC). The offender is punished if he persuaded or assisted another to commit or attempt suicide. (e) Infanticide (Art. 303 PC). The offender must be a mother who intentionally kills her child during childbirth, or subsequently but nevertheless during the period of disturbance of her organism due to such childbirth. (f) Homicide by negligence (Art. 302 PC; on the concept of negligence see above, B 6 (b) (ii)). Pursuant to an amendment (Art. 15 of Law 1419/1984), if the victim was a close relative of the defendant, the court

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Dionysios D. Spinellis may not impose a punishment if it finds that, due to pain and suffering from this loss, no such punishment is necessary (Art. 302 II PC).

2.

Abortion (άμβλωση, amvlosi)

Abortion may be committed by a pregnant woman (a) herself or (b) by another person acting with or (c) without her consent. The most serious punishment is provided in the last case, and the most lenient one in the first case (Art. 304 I–III PC). Abortion is justified, provided that it is performed in a hospital by competent medical doctors, in the following cases (Art. 304 IV PC): (a) if it takes place before 12 weeks of pregnancy are completed; (b) when indications of serious anomalies of the embryo exist, which may result in the birth of a pathological infant, and the pregnancy has not lasted for more than 24 weeks; (c) in case of medical indications, i.e. when an abortion is performed in order to avert an otherwise unavoidable danger to the life of the pregnant woman or a serious danger to her bodily or mental health; the necessity of abortion must be certified by a specialist medical doctor; and (d) in cases of criminological indications, i.e. if the pregnancy is a result of a criminal act, such as rape, incest, seduction of a minor under 15 years, and the pregnancy has not completed nineteen weeks. It should be noted that, while cases (c) and (d) had been already included in the original text of the Penal Code, case (b) was added by Law 821/1978, and case (a) was introduced by Law 1609/1986. 3.

Bodily Injury (σωματική βλάβη, somatiki vlavi)

Bodily injury is defined in the law as bodily harm or detriment to health (Art. 308 PC). The law distinguishes the following forms: (a) simple bodily injury, which may be justified by the consent of the victim, provided that it does not contravene good morals (Art. 308 PC); (b) unprovoked; and (c) dangerous bodily injury, in which forms the circumstances of commission are taken into account (Arts 308A and 309 PC); (d) severe bodily injury (e.g. serious sickness, amputation) resulting from an act of simple bodily injury (art. 310 PC); as a rule, it is not required that this subsequent result was intended by the offender: it is sufficient that he intended simple injury but was negligent as to the subsequent result; if, however, the result was intended, then the offense is punishable as a felony (term of five to ten years); intended injury plus negligence as to its fatal result is the characteristic of this form and its difference from intentional homicide; (e) deadly bodily injury; and

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(f) bodily injury by negligence; it should be noted that in the case last mentioned, if the victim was a close relative (see above, under 1 (f)), the court may refrain from punishment (Art. 314 PC). 4.

Torture (βασανιστήρια, vasanistiria)

In conformity with Article 7 II Const. and Article 4 of the UN 1984 Convention against torture and other cruel, inhuman or degrading treatment or punishment (ratified by Law 1782/1988, GG A 116), Law 1500/1984 introduced Articles 137A–137D in the Penal Code, by which torture as such is criminalized. An act of torture is defined as any systematic infliction of acute physical pain, or of physical exhaustion endangering the health of a person, or of mental suffering leading to severe physical injury, as well as any illegal use of chemicals, drugs, or other natural or artificial means capable of bending the victim’s will (Art. 137A II PC). The offender must be a public official or someone who has usurped public duties (Art. 137A I PC). Aggravated forms of torture include cases in which certain methods of torture are used, or when the acts of torture resulted in the death or serious bodily harm of the victim, or the offender had committed such acts habitually, or gave orders to others to commit them, in his capacity as their superior (Art. 137B PC). It is further provided that the state of emergency or a superior’s order do not justify any acts of torture (Art. 137D I, II PC). 5.

Theft (κλοπή, klopi)

Under Article 372 PC, theft is committed by a person who takes from another’s possession movable property (including any forms of energy), with intent to unlawfully appropriate it. An aggravated form of theft exists if the stolen property is of particularly high value. Aggravated forms amounting to felonies are thefts of certain objects (e.g., used for religious worship in churches, works of art from museums) or by certain persons (e.g., habitual or professional criminals). 6.

Embezzlement (υπεξαίρεση, ypexairesi)

Embezzlement is the unlawful appropriation of movable property belonging to another person, which had come to the possession of the offender in any (lawful) way (Art. 375 PC). The law further provides that the object of embezzlement can also be the substitute of an object or money which was entrusted to the offender by the victim with instructions to sell, purchase or exchange them. 7.

Fraud (απάτη, apati)

Fraud is committed by a person who persuades another to act or to omit or to tolerate an act by representing false facts as true or by illegally concealing or suppressing true facts, thus causing damage to the property of another, with intent to unlawfully

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enrich himself or a third person (Art. 386 I PC). The person persuaded and the person damaged need not be the same. Fraud, which is normally a misdemeanor, becomes a felony if committed professionally or habitually or if the offender’s enrichment or the property damage exceeds the sum of EUR 73,000 (Art. 386 III PC). 8.

Offenses related to Narcotic Drugs (ναρκωτικά, narkotika)

Law 1729/1987 on the suppression of the propagation of narcotic drugs and for the protection of youth provides for various criminal offenses, the most important of which are (by categories): (a) The basic offenses, punishable as felonies (see above, D 1), involve behavior related to the production, importation, trafficking or possession of narcotic drugs (Art. 5). (b) Aggravated forms of the above offenses include cases in which the perpetrator was a civil servant entrusted with the keeping of drugs or competent to prosecute offenders under the same statute or in which he introduced drugs into schools, camps or barracks of the armed forces (Art. 6). (c) A third category includes offenses committed by doctors who give prescriptions of narcotic drugs without medical indication or pharmacists who sell them without the due prescription (Art. 7). (d) Recidivists, professional drug traffickers and those who push drugs to minors are punishable with life and pecuniary penalties of up to EUR 587,000 (Art. 8). (e) By contrast, users and those who possess small quantities of narcotic drugs for their own use are punishable by imprisonment (of up to five years). However, to first offenders may be imposed, instead of punishment, only the obligation to follow a consulting and supporting program (Art. 12). (f) Finally, users who are addicts are subjected only to special treatment. They are not punished for offenses related to the use of drugs, while offenses related to the supply or trafficking thereof are punished with much lower sentences (Art. 13). 9.

Offenses related to Antiquities (αρχαιότητες, archaiotites) and Cultural Heritage

Antiquities and the cultural goods in general have been especially protected by Law 5351/1932. That Law has been amended and complemented by Law 3028/2002, to which the references below are made. These Laws regulate the discovery, ownership, possession and commerce in antiquities and cultural goods. As ancient monuments or antiquities are considered all items of the cultural heritage of the country, created from the very ancient times, before and after Christ, and until the end of the Medieval Greek (i.e. Byzantine) period, which is considered to

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have ended in 1453, and including also the post-Byzantine period until 1830. Any such work, wherever found in Greece (including the bottom of the sea of Greek territorial waters), belongs to the State (Arts 7, 20). Whoever becomes possessor of any item of antiquity or a cultural monument is required to declare it to the nearest archaeological authority or to the police or to the harbour service (Arts 8, 24). Under certain conditions, the Minister of Culture may grant to the possessor permission to legally possess the ancient movable monument (Art. 23). The above Laws provide several criminal offenses related to cultural monuments or antiquities, which are punishable by various custodial and pecuniary penalties; the main such offenses are: (a) As felonies are punishable the theft, the embezzlement and the receiving of (movable) monuments, which are products of a crime, defined as above (Arts 53–55). (b) Also as felonies are punishable the illegal excavations in search for antiquities, without permission by the archaeological authority (Art. 61) and the illegal exportation of monuments and cultural items (Art. 63 I). (c) As misdemeanors are punishable by imprisonment, inter alia, the damage to a monument (movable or immovable; Art. 56), the failure to declare it to the competent authorities (Art. 58) and the illegal transfer of such items (Art. 59). III.

CRIMINAL PROCEDURE

The Greek criminal justice system is based on the Continental tradition. The structure of authority may be considered as ‘hierarchical’, and the criminal procedure is often characterized as following a ‘mixed’ model. It would be more accurate to say that, although basically investigatory, it has also strong adversarial elements, perhaps stronger than in other Continental countries. We are going to initially discuss the institutions and the persons involved in criminal proceedings and then we will outline the procedure. A.

INSTITUTIONS

1.

The Criminal Courts

Greek criminal courts are classified according to two principles. First, according to their competence with respect to categories of offenses. Crimes are divided into felonies, misdemeanors and petty violations (see above, Section II D 1). Therefore: (a) The following courts are competent to adjudicate felonies: (i) the mixed court (composed of judges and jurors) which tries the most serious felonies such as murder, severe bodily injury, rape, etc; and (ii) the (threemember and, at second instance, also five-member) court of appeals.

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Dionysios D. Spinellis Although initially only an appellate court, it is now also competent to try at first instance several felonies which present complex legal problems, such as aggravated theft, fraud, forgery and drug offenses. (b) Misdemeanors are tried before the two misdemeanor courts (one-member and three-member), sharing this competence according to the gravity of the offenses. (c) For petty violations the petty violations court is competent. (d) All offenses committed by children and adolescents are tried before the juvenile courts.

The second principle according to which authority is allocated is based on the distinction between first-instance and second-instance courts. Most criminal offenses may be tried twice, once at each level. Some criminal courts pass judgment only as first or only as second-instance courts, but most of them alternate in both functions. Areios Pagos sits on appeals for error of law from most of the lower criminal courts (see below, under C 4 (c) (ii)).4 2.

The Public Prosecutor’s Office

The public prosecutor (εισαγγελέας, eisangeleas) is competent to prosecute criminal offenses and to represent the state throughout all stages of the proceedings. Before any decision by a criminal court, the public prosecutor must be heard. He may submit applications, make motions, plead at the end of the trial, and he may lodge appeals. Since he has the same rights as the parties to the proceedings, he may be considered as a party in the formal sense of the term. However, he is not a party in the substantive sense, since he does not represent interests contrary to those of the other parties. He is considered as an objective authority, only concerned with finding the truth and the proper application of the law. Therefore, he may also summon witnesses for the defense (Art. 327 I CCrim.P), he may plead in favor of the defendant, make a motion for his acquittal, and lodge appeals in his favor. As a consequence of his objective position, the public prosecutor sits at the same level as the judges and on their right, at a certain distance from them. Contrary to the judges, when he pleads, he stands up; therefore the public prosecutor’s office is often referred to as the ‘standing judiciary’. The public prosecutor’s office is characterized by the following principles: (a) Indivisibility: the office is represented each time by one of its members, but it functions as an indivisible entity. Therefore, any act performed by one incumbent is considered as act ‘of the office’. (b) The second principle, ‘hierarchical subordination’, correlates logically with the other. The office is organized in three levels corresponding to the organization of the courts. Each prosecutor has one or more deputies who are bound to follow his instructions, and each prosecutor likewise follows 4.

It should be noted that all judges are expected to alternate between the functions of civil and criminal adjudication, and most actually do so. To this regard see Ch. 16, Section II A (a).

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the instructions of those at higher levels (‘internal subordination’). Previously, the public prosecutor’s office was in certain respects also obliged to follow instructions by the Minister of Justice. This so-called ‘external subordination’ has been abolished by Law 1756/1989 on the reorganization of the courts and the only right of the Minister remaining is to instruct the competent public prosecutor to prosecute any criminal offense (Art. 30 I CCrim.P), which is his duty anyway. Any subordination is limited in two respects: (i) by the principle of legality, which does not permit an inferior prosecutor to carry out an order which he deems illegal; and (ii) as to the expression of personal conviction: while a subordinate is bound to act according to the instructions of his superior (e.g. to prosecute for an offense or to lodge an appeal), when he submits a motion or pleads he is free to express his own personal opinion.

B.

PERSONS INVOLVED IN CRIMINAL PROCEEDINGS

1.

The Judiciary

Criminal justice is administered not only by judicial officers (see Ch. 16, Section II A) but also by jurors. The jury system, which had been introduced in Greece in 1834 for certain offenses, was abolished in 1968 and replaced by the mixed courts. There are two types of such courts, each composed of four jurors and three judges. They are competent to try felonies, the one as first and the other as secondinstance court. The members of the court decide jointly on all questions. 2.

The Parties

As explained above, only in the formal sense is the prosecutor a party to the criminal proceedings; the only real parties in every respect are the defendant, the civil claimant and the third party under civil liability. (a)

The Defendant (κατηγορούμενος, katigoroumenos)

The defendant has a series of rights, some of which are guaranteed by the Constitution. The most important ones are: (i) The general right to be heard (Art. 20 Const.). (ii) The right to appear with counsel and communicate with him both in the pre-trial phase and during the trial (Arts 100, 340 CCrim.P). (iii) When the defendant appears before the investigating judge or before the court he must be clearly notified of the charges, and his rights must be explained (Arts 103, 273 II CCrim.P). In the pre-trial phase, the defendant has the right to examine the file and to receive copies of the documents contained therein (Art. 101 CCrim.P).

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Dionysios D. Spinellis (iv) When summoned to an investigation, he may ask for a 48-hour term (which may be extended) to prepare his defense, which he may submit in writing. (v) The right to remain silent both in the pre-trial phase and during the trial (Arts 273 II(b), 366 II(b) CCrim.P). It should be noted that, in view of this right, its exercise does not allow any inference by the court. Considering this, any comments made by the public prosecutor or the counsel of the civil claimant on the failure of the defendant to answer questions would be inappropriate and futile. However, it is argued that the way in which the defendant answered to certain questions may be commented upon. (vi) The right to put questions to witnesses, experts, etc., to make comments and applications and raise objections at trial (Arts 99, 126, 349, CCrim. P). (vii) The defendant is also entitled to defend himself at the end of the trial (Art. 366 CCrim.P), and to speak last, either personally or through his counsel or both (although this latter instance is seldom and requires that both the defendant and his counsel expressly so request; Art. 369 III CCrim.P). (viii) Finally, he may appeal against the decisions of courts and councils.

(b)

The Civil Claimant (πολιτικώς ενάγων, politikos enagon)

The civil claimant is the victim of the crime, the natural person or legal entity which has been directly damaged by it, e.g., the owner of a stolen object, he who suffered bodily harm, but also the survivors of a murdered person. Such persons may participate in the criminal proceedings and pursue a civil claim for (i) reparation of the damage, or (ii) an indemnity for non-pecuniary damage, for example to their reputation, or for pain and suffering (Art. 63 CCrim.P). They must announce their appearance in the proceedings either during the pre-trial phase or at the trial (Art. 82 CCrim.P). If the claims as presented are not founded on the law, the other parties may ask that they be dismissed from the proceedings. However, as this is a matter of admissibility, the civil claimant may subsequently re-declare his participation at trial. In many respects, the civil claimant has the same rights as the defendant, but his right to appeal at the trial phase is limited. (c)

The Third Party under Civil Liability (αστικώς υπεύθυνος, astikos ypeuthynos)

This is a person who, although not criminally liable for the offense, is bound to pay damages or indemnities or the pecuniary penalties and expenses; for example, if the defendant is an employee or a civil servant and the offense constitutes a serious violation of his duties, then the employer or the state respectively may be summoned in the proceedings as third party under civil liability. That party has the same rights as the civil claimant. However, the participation of such a party in the proceedings is rather rare in practice.

Criminal Law and Procedure C.

OUTLINE OF THE PROCEDURE

1.

Stages and Principles

479

The criminal proceedings begin by an act of prosecution and always end by decision of a court or a judicial council. The proceedings are distinguished into the pre-trial stage and the trial. Since each stage has a different goal, it is also governed by different principles. However, there are certain basic principles that are common to both stages of the procedure. These are: (a) The aim of all stages is the search for the substantive truth. In criminal proceedings no ‘presumed’ or ‘formal’ truths exist (as they exist in civil proceedings, for example the full proof based on the confession of a party, the presumptions based on the absence of a party from the hearings, etc; see Ch. 16, Sections VI E, VII G). (b) Thus, the search for the truth is made ex officio. The investigating judges, the investigating officials (Art. 239 II CCrim.P.), and the court (Art. 352 IV CCrim.P.) have the authority and the duty to seek the truth by all expedient means, both incriminating and in favor of the accused. 2.

The Pre-trial Stage

The pre-trial stage aims at finding and securing the necessary evidence in order to be able to decide whether a person must be brought to trial for a certain crime (Art. 239 CCrim.P). The principles governing it are secrecy and written procedure. No public hearings take place, but all investigating acts occur at the office of the competent official, written documents are submitted and records are kept. The public prosecutor of the first-instance court is competent to prosecute a case, after receiving information about a criminal offense. The usual sources of such information are a complaint by the victim, a denunciation by any citizen, a report by another authority, etc. If the information included in the above documents is based on the law and not manifestly unfounded as to the facts, the public prosecutor is bound to press charges (Art. 43 I CCrim.P). The principle governing his activity is the mandatory prosecution (or principle of legality). The initiation of criminal proceedings (prosecution) is effected by ordering one of the following procedures: (a) a summary investigation by a magistrate or a police officer under the supervision of the prosecutor; (b) an ‘ordinary’ investigation carried out by a regular judge; or (c) remitting the case directly to trial. The last-mentioned procedure is followed when the offense is not a severe one and the evidence sufficient. Ordinary investigation is mandatory when the offense is a felony, when the offender must be arrested and detained, or when the summary investigation needs completion. In all other cases, the summary investigation procedure is followed. During the investigation (procedures under (a) and (b)), witnesses are examined, expertises made, house search and local inspections effected, etc. Of particular importance is the possibility to temporarily detain the defendant, or to impose upon

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him various conditions restricting his freedom of movement, for example the prohibition to go to or leave a certain place or to report to the police at certain intervals. Detention or restrictions are ordered only when sufficient grounds of suspicion exist, provided that the defendant is prosecuted for a felony or a misdemeanor (see above, Section II D 1) punishable by imprisonment of at least three months. The restrictions are imposed in order to secure that the defendant will appear before the investigating judge or the court or that he will submit himself to the execution of the penalty (Art. 296 CCrim.P). Pre-trial detention may be imposed only in felony cases and if one of the following additional conditions exist: the accused has no known residence in Greece or has made preparations to abscond or has been in the past a fugitive from justice or has escaped from prison or has violated the restricting conditions imposed upon him or, in view of past facts from his previous life or of circumstances of the act he is accused of, it is very probable that the accused may commit more crimes in the future. The temporary detention in misdemeanor cases may be ordered only if the accused has violated the restricting conditions (Art. 282 III, IV CCrim.P). The duration of a temporary detention cannot exceed 18 months in cases of felonies and nine months in cases of misdemeanors (Art. 6 IV Const.; Art. 286 II CCrim.P). 3.

Procedure before the Judicial Councils (Indictment Chambers)

When the summary investigation procedures are completed, the prosecutor either refers the case to trial or to an ordinary investigation or, if he believes that there is not sufficient evidence for a trial, he remits the case to the judicial council or indictment chamber (δικαστικό συμβούλιο, dikastiko symvoulio) with a motion to acquit without trial. When the ordinary investigation is completed, the case must be submitted to the judicial council with a motion either to remit the case to trial or to dismiss it for various reasons. The judicial council or indictment chamber is a panel of judges deciding in camera. Their decisions must be reasoned as the decisions of courts in public trials. The further proceedings before the judicial councils, which are available in more serious cases, are similar to those before courts: appeals from the first-instance council lie with the judicial council of appeals. Against some of the decisions in both instances, an appeal for error of law before Areios Pagos is possible. With respect to certain categories of offenses (drugs, arson of woods, maritime fraud, organized crime), more simplified indictment procedures, bypassing the judicial councils, have been introduced by special laws (e.g., Laws 663/1977, 1419/1984, 1729/1987 and 1916/1990). 4.

The Main Proceedings (Trial Phase)

(a)

The Preparatory Stage

In this stage, the defendant must be served with either a copy of the judicial council’s decision referring him to trial or a special document from the prosecutor

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describing the act he is accused of and the legal provisions governing it. In addition, the defendant is notified in advance by both the prosecutor and the civil claimant of the names of witnesses to be examined, except in cases of minor importance. The defendant, however, is not bound to disclose the witnesses he is going to examine. (b)

The Trial

In the initial phase, the parties are identified. In minor cases, the defendant need not be present but may be represented by his counsel. In misdemeanors, if the defendant is absent although he has been legally summoned, he is tried as if he were present, i.e. the court searches ex officio for the truth (Art. 340 III CCrim.P). In felonies, however, as a rule, if the defendant does not appear, the court adjourns and suspends the proceedings until he appears or is arrested (Art. 432 I CCrim.P). At first, the prosecutor reads the accusation or summarizes the charges. Then the president of the court asks the defendant whether he wants to give general information to the court about these charges, reminding him that he has the right to present his defenses himself after the taking of evidence is completed. It should be noted that plea bargaining is not accepted and applied in the Greek criminal proceedings. Since the court is investigating the facts ex officio, and considering also the principle of legality in prosecuting, neither does the defendant have the power to dispose of the subject matter, nor does the public prosecutor have the right to withdraw the charges. Furthermore, the confession of the accused is not considered any more as ‘the crown of the means of evidence’ as in previous times, because it may be false. Therefore, under the system of the free evaluation of evidence it should be considered in conjunction with the other means of proof. Then the witnesses are examined. They are asked first to say in a narrative form whatever they know on the subject, and then questions are put to them by the president of the court, the other judges, the prosecutor, and counsel for the civil claimant, for the third party under civil liability and for the defendant, in that order (Art. 357 CCrim.P). It should be noted that the same order is followed as to all witnesses, i.e. either testifying against or in favor of the defendant; in this respect the Greek procedure differs from the examination and cross-examination system of the Anglo-American procedure. Furthermore, under the system of the free evaluation of evidence, rules such as the prohibition of hearsay evidence have no application. That kind of evidence is permitted, and the judges are free to believe it or not. Then the experts’ reports are read and the experts may be asked to give certain clarifications. All documents taken into consideration by the court must be read out aloud. The prosecutor and the parties may comment on the evidence after it has been taken (Art. 358 CCrim.P). Finally, the defendant may speak and defend himself. The president, the judges and the prosecutor may ask him questions. The parties may only put questions to the defendant through the president. The prosecutor and counsel for the parties make their presentations summing up their case. The defendant and his counsel are always granted the last word (Art. 369 III CCrim.P).

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When all this is completed, the court retires and deliberates, first on the guilt issue. In deliberating and deciding, the judges are not obliged to follow any formal rules of evidence (e.g., ‘beyond reasonable doubt’), but they should decide ‘following the voice of their conscience and guided by their objective judgment, resulting from the proceedings as to the truth of facts, the trustworthiness of the witnesses and the value of the other means of evidence’ (Art. 177 I CCrim.P). If the accused is found guilty, the judgment is announced in public and a discussion on the penal sanctions and on the claims of the civil claimant follows. The civil claimant and the third party under civil liability are not allowed to express their opinion on the penal sanctions but only on the claims. The sentence is announced in public and must be drawn up in writing within eight days after the hearing (Art. 144 I CCrim.P). (c)

Appeals

There are two kinds of appeals: (i) The appeal de novo from the decisions of first-instance courts and for any ground related to the law or to the facts; it lies to the courts of second instance. They retry the case, whereby the same procedure as before the former ones applies with few exceptions. One of them is the prohibition of the reformatio in peius. If the appeal has been lodged only by the defendant or by the prosecutor in his favor, then it is not permitted to worsen his position; the decision on appeal must either be more favorable to the defendant or leave the decision of the first instance unchanged. But if the prosecutor had also lodged an appeal against the defendant, the court is not bound by this principle. (ii) The appeal for error of law (cassation) from all criminal courts lie with Areios Pagos. Such appeal is permitted only against certain kinds of decisions and only for a limited number of grounds provided by the law, consisting in errors in the decision or violations of law during the trial (Arts 484, 510 CCrim.P). Among them, the wrong interpretation and application of a substantive criminal provision and the lack of a reasoned decision, which is mandatory under the Constitution (Art. 93), are of particular importance. If the appeal is sustained, Areios Pagos vacates the decision and then either applies the law properly itself or remands the case for retrial to another court of the same level as the one which had rendered the vacated decision, or to the same court but to be composed of different judges. (d)

Double Jeopardy

If a person was convicted or acquitted through a non-appealable judgment, he may not be prosecuted again for the same acts, even if the latter are now qualified as a different offense (Art. 57 CCrim.P); for example, if the defendant was convicted for deadly bodily injury he may not be prosecuted again for murder. It should be noted, however, that in exceptional cases (such as subsequent discovery that the

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evidence in the trial was false, or discovery of new evidence) the law provides for the possibility of reopening the case. Against the acquitted person, reopening is possible only for grounds consisting of criminal offenses that influenced the decision (e.g. forgery of documents or bribery of judge), while in favor of a condemned person, also on account of the discovery of new facts or evidence. (e)

Extradition and Mutual Assistance in Penal Matters

Extradition (έκδοση, ekdosi) is governed by Articles 436–456 CCrim.P, while mutual assistance in penal matters by Articles 457–461 CCrim.P. These national provisions, however, apply on a subsidiary and supplementary basis only, because the application of various international conventions, treaties and other instruments prevails. It should be noted that, under Article 28 of the Constitution, international treaties after being ratified by law become part of domestic Greek law and prevail over any contrary statutory provision (see Ch. 3, Section I D). Greece is party to the European Convention on extradition of 1957,5 the European Convention on mutual assistance in criminal matters of 1959, and its Additional Protocol (1978),6 and to several bilateral treaties. Furthermore, the Conventions signed among the Member States of the European Union concerning extradition, and to which Greece is also a party, should be mentioned. The most important ones are: (a) the Schengen Agreement of 1990 between the Member States (see Arts 59–66),7 (b) the Convention on simplified extradition procedure between the Member States of the EU of 1995,8 and (c) the Convention on extradition of 1996.9 However, it must be stressed that the European Council Framework Decision of June 13, 2002 on the European arrest warrant10 has replaced the above extradition conventions insofar as the relations between EU Member States are concerned. The existing mutlilateral and bilateral conventions and treaties still apply of course to the relations between Greece and third states. Of particular importance as models for similar agreements are the agreements on extradition and on mutual legal assistance between the European Union and the United States of America signed in Washington, DC in 2003.11 If no treaty or convention applies, the provisions of national law are activated. Thus under Article 438 CCrim.P, extradition is prohibited inter alia: (a) if the requested person was a Greek national when the offense was committed; (b) if the offense for which extradition has been requested is considered as a political offense by Greek law, or if it appears from the circumstances that extradition is 5. Ratified by Law Decree 4165/1961, GG A 75; Greece has also signed its two Additional Protocols of 1975 and 1978. 6. Ratified by Law Decree 4218/1961, GG A 171 and Law 1129/1981, GG A 42 respectively. 7. Ratified by Law 2514/1997, GG A 140. 8. Ratified by Law 2787/2000, GG A 5. 9. Ratified by Law 2718/1999, GG A 105; see also Art. 38 of Law 3251/2004. 10. Transposed by Law 3251/2004, GG A 127. 11. OJ L 181/27–33, 2003 and ibid. 34–42 respectively. These agreements have not yet been ratified by Greece.

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requested for political reasons; or (c) if it is probable that the person requested will be prosecuted by the requesting state for an offense other than the one for which the request has been submitted. Furthermore, according to Article 5 II(b) Const., ‘extradition of a foreigner, prosecuted for his activity for freedom, is prohibited’. In extradition proceedings, the person requested is clearly given the status of a party and has most of the rights provided for the defendant (see above, under B 2 (a)). If the courts (the court of appeals at first instance and, on appeal, Areios Pagos) decide that extradition shall not be made, their decision cannot be reversed by the executive power; consequently, the person concerned is released from custody. If they give an opinion favorable to extradition, the Minister of Justice may order the extradition, without, however, being required to do so. Mutual assistance includes the hearing of witnesses, interrogation of defendants, preparation of expert reports, visits and reports on the scene of the offense, seizure of pieces of evidence, service of summons, etc. A request for such assistance may be refused for the same reasons as extradition (Art. 458 III CCrim.P). BASIC BIBLIOGRAPHY A.

BOOKS

1.

In English

I. Anagnostopoulos and K. Magliveras, Criminal Law in Greece (Athens, 2000). N.B. Lolis, The Greek Penal Code (London, 1973); this is a translation of the Penal Code with an introduction by G.A. Mangakis. D. Spinellis and C.D. Spinellis, ‘Greece’ in Criminal Justice Systems in Europe and North America (Helsinki, 1999). D. Spinellis, ‘The Greek Prosecution Service’ in Tasks and Powers of the Prosecution Services in the EU Member States, P.J.P. Tak (ed.), vol. I (Nijmegen, 2004); vol. II (Nijmegen, 2005). 2.

In Greek

N. Androulakis, Penal Law. Special Part, vol. I (Athens, 1974). N. Androulakis, Basic Concepts of Penal Process (2nd edn, Athens, 1994). N. Androulakis, Penal Law. General Part, vol. I: Theory of Crime (2nd edn, Athens, 2006), vol II: Attempt and Accomplice Liability (Athens, 2004). A. Bouropoulos, Commentary of the Code of Penal Procedure, vols I–II (2nd edn, Athens, 1957). A. Bouropoulos, Commentary of the Penal Code, vols I–III (Athens, 1959–1964). N. Chorafas and K. Stamatis, Penal Law, vol. I (9th edn, Athens, 1978). Ch. Dedes, Penal Law, Special Part, fasc. 1–6 (Athens, 1976–1983). Ch. Dedes, Penal Procedure (6th edn, Athens, 1983).

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I. Gafos, Penal Law. Special Part, fasc. 1–7 (Athens, 1957–1969). I. Gafos, Penal Procedure, vol. I (5th edn, Athens, 1966), vol. III (6th edn, 1967). I. Gafos, Penal Law, General Part, vols I–III (Athens, 1978). I. Georgakis and A. Charalambakis, Penal Law. General Part (A Coursebook) (Athens-Komotini, 1990). D. Karanikas, Manual of Penal Law, vols I–III (Thessaloniki, 1954–1961). A. Karras, Penal Procedural Law (2nd edn, Athens-Komotini, 1998). L. Kotsalis, Penal Law. General Part, vols I, II (Athens-Komotini, 2005). G.A. Mangakis, Penal Law. An Outline of the General Part (2nd edn, Athens, 1982). I. Manoledakis, Penal Law. General Part (Thessaloniki, 1985). I. Manoledakis, Penal Law, General Theory (2nd edn, Athens-Thessaloniki, 2004). I. Manoledakis and N. Bitzilekis, Penal Law. Special Part: Offenses against Property (12th edn, Athens-Thessaloniki, 2004). M. Margaritis, Penal Code, Interpretation-Application (Athens, 2003). Ch. Mylonopoulos, International Penal Law (Athens-Komotini, 1990). Ch. Mylonopoulos, Penal Law, Special Part: Offenses Pertaining to Documents (Athens, 2005). Ch. Mylonopoulos, Penal Law, Special Part: Offenses Against Property (2nd edn, Athens, 2006). D. Spinellis, Penal Law. Special Part: Offenses Against Honor (Libel and Slander) (2nd edn, Athens-Komotini, 1982). D. Spinellis, Introduction to the Penal and Criminological Sciences (AthensKomotini, 1984). D. Spinellis, Penal Law. Special Part: Offenses Against Property, fasc. 1–2 (Athens-Komotini, 1984–1985). D. Spinellis, Basic Elements of Penal Law and Penal Procedure (Athens-Komotini, 1990). D. Spinellis (ed.), Systematic Interpretation of the Penal Code, Articles 1–133 (Athens, 2005). A. Toussis and A. Georgiou, Commentary of the Penal Code (3rd edn, Athens, 1967). K. Vouyoucas, Penal Procedural Law, vols I–II (6th edn, Thessaloniki, 1984). I. Zissiadis, Penal Law. General Part, vols I–III (2nd edn, Thessaloniki, 1971). I. Zissiadis, Penal Procedure, vols I–III (3rd edn, Thessaloniki-Athens, 1976–1977). B.

ARTICLES AND CONTRIBUTIONS TO COLLECTIVE WORKS (selective list in foreign languages, mostly after 1980).

1.

In English

I. Anagnostopoulos, ‘Greece: Criminal Law and Modern Bio-medical Techniques’, Revue internationale de droit pénal 59 (1988) 951–959.

486

Dionysios D. Spinellis

A. Pitsela, ‘Greece: the Current Sanctions System’ in Sanction Systems in the Member-States of the Council of Europe, A.M. van Kalmthout and P.J.P. Tak (eds), Part I (Arnhem, 1988). D. Spinellis, ‘The Civil Action: A Useful Solution to the Victims’ Problems?’ in Criminal Law in Action, J. van Dijk, C. Haffmans, F. Rüter, J. Schutte and S. Stolwijk (eds) (Arnhem, 1986). D. Spinellis, ‘Securing Evidence Abroad. A European Perspective’, in International Criminal Law, C. Bassiouni (ed.), vol. II: Procedure (New York, 1986). D. Spinelllis, ‘Custodial and Non-custodial Sanctions in the Greek Penal Code and in Practice’ in Non-custodial Alternatives in Europe, N. Bishop (ed.) (Helsinki, 1988). D. Spinellis, ‘The Legal and Practical Problems Posed by the Difference Between Criminal Law and Administrative Penal Law’, Revue internationale de droit pénal 59 (1988) 217–225. D. Spinellis, ‘Recent Trends in the Greek Criminal Proceedings: Limiting or Expanding the Rights of the Accused’, Temple Law Review 62 (1989) 1261–1279. D. Spinellis, ‘The Relations between the Organization of the Judicature and Criminal Procedure (in Greece)’, Temple International and Comparative Law Journal 3 (1989) 1–24. D. Spinelllis, ‘Is the Political Offense Exception to Extradition Redundant in View of the International Protection of the Human Rights? A Greek Perspective’ in Principles and Procedures for a New Transnational Criminal Law, A. Eser and O. Lagodny (eds) (Freiburg i.B., 1991). D. Spinelllis, ‘Greece’ in L’Harmonisation des Sanctions Pénales en Europe, M. Delmas-Marty, G. Giudicelli-Delage, E. Lambert-Abdelgawad (eds) (Paris, 2003). L. Tsourelli, ‘Human Rights in Pre-trial and Trial Procedure in Greece’ in Human Rights in Criminal Procedure, J.A. Andrews (ed.) (The Hague-BostonLondon, 1982) 202–237. 2.

In German

I. Anagnostopoulos, ‘Schwerpunkte neuerer Entwicklungen im griechischen Strafrecht’, Zeitschrift für die gesamte Strafrechtswissenschaft 98 (1986) 542–570, 720–742. N. Androulakis, ‘Literaturbericht: Griechenland (Materielles Strafrecht)’, Zeitschrift für die gesamte Strafrechtswissenschaft 83 (1971) 603–649. N. Androulakis, ‘Strafrecht’ in Südosteuropa-Handbuch, vol. III: Griechenland, K.D. Grothusen (ed.) (Göttingen, 1980). C. Dedes, ‘Die Gefährdung in den Delikten gegen die Rechtspflege nach griechischem und deutschem Recht’, Gedächtnisschrift für Horst Schröder (München, 1978). C. Dedes, Beweisverfahren und Beweisrecht (Berlin, 1992).

Criminal Law and Procedure

487

S. Kareklas, ‘Griechenland’ in Strafrechtsentwicklung in Europa (Freiburg i. Br, 1988). D. Spinellis, ‘Probleme des Hochverrats im Lichte der Erfahrungen aus der jüngsten griechischen Geschichte und Rechtsprechung’, Zeitschrift für die gesamte Strafrechtswissenschaft 94 (1982) 1080–1099. D. Spinellis, ‘Die Entwicklung des griechischen Strafrechts in den letzten dreiβig Jahren’, Zeitschrift für die gesamte Strafrechtswissenschaft 95 (1983) 459– 482. D. Spinellis, ‘Beweisverbote im griechischen Strafprozessrecht’, Zeitschrift für Rechtsvergleichung (Wien, 1989) 39–50. C. Vouyoucas, ‘Die Grenzen der Strafgewalt im allgemeinen und besonders in Griechenland’ in K. Bard (ed.), Das Recht zum Strafen (Budapest, 1986) 28–45. 3.

In French

D. Spinellis, ‘Transmission du Sida et droit pénal’, Revue internationale de criminologie et de police technique 3 (1991) 344–372. C. Vouyoucas, ‘La protection pénale des biens culturels en droit hellénique’, Journées de la Société de Législation Comparée (Paris, 1986) 348–381. C. Vouyoucas, ‘Les ordinateurs électroniques et le droit pénal économique’ in Studi in Memoria di Pietro Nuvolone (Milan, 1991) 673–704.

Appendix I

Statutes and Statutory Instruments

(References are made to Chapters with their subdivisions) A.

GREEK LAW

RD of 23 February/7 March 1835: 1 IV B, 9 I RD of 19 April/1 May 1835: 11 I RD of 2/14 May 1835: 11 I L of 13 December 1878: 11 II A L of 22 February 1910: 11 II A L 3886/1911: 13 II B 1 L 3950/1911: 6 IV A ftn. 20 L 146/1914: 11 IV A, 11 IV B 4, 11 IV B 5, 11 IV C, 12 I B L 551/1915: 6 IV A ftn. 20, 13 IV B 1, 13 VI B L 2112/1920: 14 II I 1, 14 II I 2 L 2190/1920: 11 III D, 11 IV B 1, 11 VII A, 12 I B, 12 II, 12 II H, 12 II I, 12 II J, 13 V A L 2386/1920: 17 I C LD of 17 July/13 August 1923: 6 II V ftn. 17, 8 III, 11 III, 11 III C, 11 III E, 11 VII B LD of 25 October 1923: 18 I B (h) ftn. 1

LD 4/1926: 17 III LD 22/24 June 1927: 18 II H 5 L 3632/1928: 12 I B L 3713/1928: 3 V C 1 L 4793/1930: 18 I B (h) ftn. 2 L 5013/1931: 17 III L 5076/1931: 11 VII A L 5237/1931: 5 II E L 5280/1931: 11 II A ftn. 2 L 5325/1932: 6 II T, 11 III A, 11 III A 1, 11 III A 2, 17 I B 1 (b) L 5351/1932: 20 II E 9 L 5638/1932: 11 VII B PD of 27 June 1932: 14 II E 1 L 5960/1933: 6 II T, 11 III, 11 III B, 17 I B 1 (b) L 596/1937: 6 IV A ftn. 20 NL 635/1937: 11 II A NL 2243/1940: 13 I A L 539/1945: 14 II E 1 L 1022/1946: 15 II B

490 LD of 7/10 May 1946: 2 II L 1600/1950: 13 II B 1 L 1611/1950: 15 II B L 1846/1951: 15 III A, 15 III B, 15 IV B L 2329/1953: 3 VI A 2 LD 2548/1953: 19 II D LD 2687/1953: 13 II A 3, 16 XII A, 19 VII F LD 2732/1953: 19 II D L 2810/1954: 16 XIII D L 2893/1954: 17 I F LD 3026/1954: 18 II H 2 LD 3077/1954: 11 III E L 3190/1955: 12 III, 12 IV, 13 V A L 3198/1955: 14 II I 1 L 3248/1955: 14 II D LD 3562/1956: 11 II B RD of 22 December 1956: 11 II B L 3816/1958: 11 VIII A ftn. 13, 11 VIII C 5, 13 II A 1 LD 3899/1958: 13 I B, 13 III A, 13 IV A 2, 17 I G LD 3989/1959: 18 II A LD 4165/1961: 20 III C 4 (e) ftn. 5 LD 4205/1961: 14 III B LD 4218/1961: 20 III C 4 (e) ftn. 6 LD 4220/1961: 16 XII A, 17 III LD 4254/1962: 11 V A L 4296/1963: 19 II D L 4300/1963: 19 II D LD 4386/1964: 19 II D LD 4390/1964: 19 II D LD 4395/1964: 6 IV A ftn. 20 LD 4396/1964: 19 II D LD 4407/1964: 13 II B 1

Appendix I LD 4502/1966: 13 IV B 1 LD 4570/1966: 13 II B 1 LD 4580/1966: 19 II D NL 23/1967: 19 II D NL 24/1967: 19 II D NL 52/1967: 19 II D NL 54/1967: 19 III A NL 86/1967: 15 III A NL 89/1967: 17 I F, 19 II A, 19 III C, 19 VII F NL 131/1967: 19 II D NL 261/1968: 3 IV D 6 NL 378/1968: 19 III C, 19 VII F NL 389/1968: 18 II A NL 391/1968: 13 II B 1 NL 573/1968: 19 II D NL 608/1968: 17 III LD 87/1969: 13 IV B 1 LD 117/1969: 19 II D LD 230/1969: 19 II D LD 400/1970: 11 VIII A, 11 VIII B 1, 11 VIII E, 11 VIII F RD 423/1970: 11 IV C, 11 VIII B 2 LD 503/1970: 18 II D LD 515/1970: 14 II E 1 LD 608/1970: 12 I B LD 610/1970: 9 V A LD 712/1970: 13 VIII A LD 796/1971: 3 V A 3 LD 951/1971: 11 VII B LD 973/1971: 13 III A LD 994/1971: 19 II D LD 1059/1971: 11 VII A LD 170/1973: 3 II B 6 LD 174/1973: 20 II A 3 (v) LD 187/1973: 13 II A 2 LD 45/1974: 19 II D LD 53/1974: 3 III A 2, 3 VI A 2 ftn. 22

Appendix I LD 215/1974: 3 VI A 2 LD 375/1974: 13 II B 1, 13 IV B 1 LD 472/1974: 17 I D 1 (b) L 27/1975: 13 I B, 13 IV B 1, 19 III C, 19 VII F L 90/1975: 17 I D 1 (a) L 100/1975: 5 II E, 11 V A L 184/1975: 16 IX A L 213/1975: 11 IV ftn. 3 L 265/1976: 3 III B L 314/1976: 6 IV A ftn. 20, 13 II B 1 L 345/1976: 3 II B 6, 3 III A 1 L 350/1976: 3 II A 3 L 360/1976: 8 III L 457/1976: 13 III A, 13 IV A 1, 13 IV A 2 L 489/1976: 11 VIII A L 566/1977: 3 II B 3 L 590/1977: 3 II C L 593/1977: 17 I H 5 L 663/1977: 20 III C 3 L 693/1977: 3 II B 6 L 702/1977: 3 II B 6, 15 IV A L 703/1977: 11 VI, 17 I B 2 L 791/1978: 17 I F L 813/1978: 6 II C L 821/1978: 20 II E 2 PD 341/1978: 15 IV A MD K4/585/1978: 11 VIII A, 11 VIII C 4 L 876/1979: 6 I B 2 (c) ftn. 2 L 880/1979: 8 VI ftn. 19 L 933/1979: 19 II D L 945/1979: 3 I E, 4 I L 948/1979: 13 II B 1 L 959/1979: 12 I A, 13 V A L 1045/1980: 13 II B 1 L 1049/1980: 9 V A L 1101/1980: 19 II D PD 774/1980: 3 II B 6 L 1134/1981: 19 VII A ftn. 68 L 1159/1981: 13 II B 1 L 1191/1981: 19 II D

491 PD 1225/1981: 3 II B 6 L 1232/1982: 3 IV A 1, 3 IV A 1 L 1239/1982: 15 III A L 1250/1982: 9 II C, 17 I D 1 (a), 18 I A, 18 I E 1 L 1262/1982: 15 IV C, 19 II C ftn. 16, 19 VII A ftn. 68 L 1264/1982: 14 III, 14 III D L 1269/1982: 13 II B 1 L 1275/1982: 15 III B L 1302/1982: 15 III A L 1303/1982: 3 III A 1 PD 278/1982: 15 III A L 1325/1983: 17 I E L 1329/1983: 1 IV B, 5 II D, 9 I, 9 II F, 9 III A, 9 VIII A, 10 I, 17 I D L 1334/1983: 17 II L 1337/1983: 8 V C L 1343/1983: 19 II D L 1346/1983: 15 IV C L 1363/1983: 17 I D 1 (a) L 1373/1983: 13 III A L 1386/1983: 11 II B L 1387/1983: 14 II I 1 L 1397/1983: 15 IV C L 1406/1983: 3 II B 6, 3 IV D 7, 3 IV D 8, 15 IV A, 16 II C PD 318/1983: 11 IV C L 1414/1984: 14 II B, 14 II H L 1419/1984: 20 III C 3 L 1426/1984: 3 VI A 2 L 1438/1984: 18 I A, 18 I D, 18 I E 1 L 1443/1984: 3 III A 2 L 1455/1984: 19 II D L 1470/1984: 4 III A 2 ftn. 42 L 1478/1984: 16 V C, 16 VII A, 16 X A L 1496/1984: 19 II D L 1497/1984: 13 III C L 1500/1984: 20 II E 4 L 1502/1984: 19 II D Collective Agreements of 14 February 1984: 14 II E 1 L 1515/1985: 8 IV L 1516/1985: 3 III A 1

492 L 1532/1985: 3 VI A 2 L 1539/1985: 15 II B L 1558/1985: 3 III C 2, 3 III C 3, 3 IV A 1 L 1561/1985: 8 IV L 1562/1985: 16 X B L 1568/1985: 14 II E 2 L 1569/1985: 11 VIII B 2 L 1572/1985: 3 I E L 1577/1985: 8 II ftn. 5, 8 III, 8 VI PD of 24/31 May 1985: 8 III ftn. 8 PD 118/1985: 11 VIII A PD 348/1985: 12 I B PD 350/1985: 12 I B PD 360/1985: 12 I B L 1607/1986: 11 IV D in f. L 1609/1986: 20 II E 2 L 1638/1986: 13 II B 1 L 1642/1986: 19 IV A 1 ftn. 54 L 1649/1986: 9 II E, 9 II F L 1650/1986: 8 VI L 1652/1986: 7 IV L 1656/1986: 17 I D 1 (a) L 1657/1986: 17 I D 2 (b) L 1665/1986: 6 II C, 19 VII A L 1676/1986: 19 IV A 4 PD 237/1986: 11 VIII A, 11 VIII C 4 PD 409/1986: 12 II H PD 419/1986: 12 III, 12 IV L 1681/1987: 3 I E L 1702/1987: 9 IV C, 17 I D 2 (a) L 1703/1987: 6 II C L 1705/1987: 3 VI A 2 ftn. 22 L 1709/1987: 17 I H 5 L 1711/1987: 13 IV B 2 L 1729/1987: 20 II D 1 (c), 20 II E 8, 20 III C 3 L 1730/1987: 3 III A 2 L 1733/1987: 11 IV D, 11 IV E L 1738/1987: 4 III A 2 ftn. 42, 16 VIII E, 17 I E PD 207/1987: 19 VII F PD 498/1987: 12 II H, 12 II I, 12 III D L 1756/1988: 3 II B 6, 16 II, 20 III A 2 (b) L 1772/1988: 8 III, 8 VI

Appendix I L 1775/1988: 12 I B L 1782/1988: 20 II E 4 L 1786/1988: 14 III C L 1787/1988: 17 I D 2 (b) L 1789/1988: 20 II A 3 (v) L 1792/1988: 17 I B 1 (b) L 1806/1988: 12 I B, 12 I B L 1814/1988: 16 III G ftn. 7 L 1815/1988: 11 VIII A ftn. 13 PD 410/1988: 14 II B L 1837/1989: 14 II B L 1838/1989: 19 II D L 1841/1989: 3 VI A 2 ftn. 22 L 1847/1989: 3 II A 4, 3 III A 1 L 1850/1989: 3 IV B 2 L 1866/1989: 3 III A 2 L 1868/1989: 15 IV A PD 18/1989: 3 II B 6, 3 V A 3, 3 V C 1, 3 V C 2, 15 IV A PD 489/1989: 12 I B PD 518/1989: 12 I A L 1876/1990: 14 II A, 14 III A L 1883/1990: 11 IV D in f., 17 I C L 1892/1990: 3 IV A 1, 3 IV C 2, 11 II B, 12 I A, 12 I B, 15 II B, 17 I F, 17 I G, 17 III, 19 VII A ftn. 68, 19 VII E ftn. 69 L 1902/1990: 15 II B, 15 III A, 15 IV C L 1905/1990: 6 I J L 1907/1990: 3 III A 1 L 1914/1990: 3 IV C 2, 12 I B L 1922/1991: 13 II B 1 L 1923/1991: 13 II B 1 L 1924/1991: 19 II D L 1927/1991: 19 II D L 1939/1991: 19 II D L 1953/1991: 6 II C L 1960/1991: 12 I B L 1969/1991: 12 I B L 1986/1991: 19 II D PD 16/1991: 17 I C PD 360/1991: 3 IV C 2 PD 361/1991: 3 IV C 2 PD 362/1991: 3 IV C 2 L 2005/1992: 17 I B 1 (b)

Appendix I L 2029/1992: 11 IV D in f. L 2054/1992: 11 V A L 2065/2002: 19 II C ftns 16/17/26, 19 III A ftns 37 and 38, 19 III E L 2071/1992: 15 IV C L 2076/1992: 11 VII A L 2077/1992: 3 I E L 2082/1992: 9 VII C L 2084/1992: 15 II A ftn. 6 L 2093/1992: 19 IV A 1 ftn. 55 L 2102/1992: 17 I D 2 (d) L 2104/1992: 17 I D 2 (d) L 2107/1992: 13 II B 1, 13 VII B PD 53/1992: 12 I B PD 186/1992: 19 II ftn. 6 L 2121/1993: 5 II E, 11 V A, 11 V B, 11 V D, 17 I C L 2130/1993: 18 I B (h) L 2145/1993: 16 VIII B L 2172/1993: 13 I B, 16 VIII E, 20 II D 1 (a) PD 279/1993: 12 III F L 2214/1994: 12 II C L 2218/1994: 3 IV A 2, 3 IV B 2 L 2224/1994: 14 II E 2 L 2232/1994: 3 III C 3 (d) L 2234/1994: 17 I F L 2238/1994: 19 II A L 2239/1994: 11 IV B 5, 11 IV C, 17 I C L 2251/1994: 5 IV B, 11 VII B, 11 VIII A, 16 IV A ftn. 8 L 2255/1994: 19 II D L 2272/1994: 3 I E PD 326/1994: 12 IV L 2279/1995: 19 II D L 2289/1995: 13 III A, 13 IV A 1, 13 IV A 2 L 2290/1995: 11 V A L 2298/1995: 16 II A (b) L 2308/1995: 7 VI L 2319/1995: 19 II D L 2321/1995: 13 I A L 2324/1995: 12 I B PD 34/1995: 6 II C

493 PD 197/1995: 13 II B 1 PD 270/1995: 13 II B 1 L 2391/1996: 13 II B 1 L 2396/1996: 12 I B L 2400/1996: 3 VI A 2 ftn. 22 L 2403/1996: 14 III B L 2417/1996: 11 IV E L 2419/1996: 19 II D L 2422/1996: 3 VI A 2 L 2434/1996: 15 IV A L 2447/1996: 5 V B, 9 V A, 9 VII C, 10 I, 17 I D 2 (b) PD 30/1996: 3 IV B 1 PD 74/1996: 13 II B 1 PD 210/1996: 13 II B 1 PD 252/1996: 11 VIII A L 2459/1997: 19 III C ftn. 42 L 2460/1997: 17 III L 2462/1997: 3 VI A 2, 16 XIII D L 2472/1997: 5 II E, 11 VIII A L 2496/1997: 11 VIII A, 11 VIII B 1, 11 VIII B 2, 11 VIII C 5, 11 VIII E, 13 IX L 2502/1997: 17 I D 2 (d) L 2505/1997: 17 I C L 2508/1997: 8 I ftn. 3, 8 III, 8 IV, 8VB L 2514/1997: 18 II B ftn. 4, 20 III C 4 (e) ftn. 7 L 2515/1997: 11 VII A L 2521/1997: 10 I L 2523/1997: 19 VI L 2532/1997: 17 I B 1 (b) L 2533/1997: 12 I B L 2539/1997: 3 IV B 1 PD 259/1997: 11 IV E PD 358/1997: 18 II H 4 PD 359/1997: 18 II H 4 L 2571/1998: 19 II D L 2572/1998: 19 II D L 2579/1998: 12 I B L 2595/1998: 3 VI A 2 L 2601/1998: 19 VII A ftn. 68, 19 VII B, 19 VII E ftn. 69

494 L 2610/1998: 3 VI A 2 ftn. 22, 20 II D 1 (a) L 2619/1998: 5 II B ftn. 1 L 2639/1998: 14 II A, 14 II D, 14 II E 1 L 2643/1998: 14 II B L 2648/1998: 12 I B L 2653/1998: 19 II D L 2659/1998: 19 II D L 2664/1998: 7 VI PD 62/1998: 14 II B PD 133/1998: 17 I C L 2676/1999: 15 II A L 2690/1999: 3 IV D 1 L 2691/1999: 3 I E L 2717/1999: 3 II B 6 L 2718/1999: 20 III C 4 (e) ftn. 9 L 2733/1999: 12 I B L 2741/1999: 5 IV B L 2742/1999: 8 I and ftn. 3, 8 III, 8VB L 2750/1999: 17 I D 2 (c) L 2755/1999: 19 II D PD 160/1999: 14 II D PD 182/1999: 7 IV MD 2063/B.69/1999: 12 I B L 2783/2000: 11 IV B 5 in f., 17 I C L 2787/2000: 20 III C 4 (e) ftn. 8 L 2790/2000: 18 I B (h) L 2803/2000: 20 II B 2 ftn. 2 L 2831/2000: 8 III, 8 VI L 2832/2000: 11 VII A L 2836/2000: 12 I B L 2842/2000: 6 I B 2 (c) ftn. 2 L 2843/2000: 12 I B L 2844/2000: 7 VII L 2859/2000: 19 IV A 1 ftn. 54 L 2874/2000: 14 II D, 14 II E 1 PD 11/2000: 13 III C PD 152/2000: 12 I A Resolution 1/2000 of the Council of Ministers: 6 I B 2 (c) (iii) ftn. 8 L 2881/2001: 13 VIII D L 2882/2001: 3 IV D 9 L 2889/2001: 15 IV C

Appendix I L 2910/2001: 18 I A, 18 I B (e), 18 I B (h), 18 II A, 18 II C 6, 18 II D, 18 II H 4 L 2915/2001: 10 I, 11 VII A, 16 V B, 16 V C, 16 VI C ftn. 10, 16 VII A, 16 VII F, 16 VIII C, 16 IX A, 16 X A, 16 X C L 2927/2001: 19 II D L 2941/2001: 12 II A (e) L 2943/2001: 20 II D 1 (c) ftn. 3 PD 150/2001: 5 V D PD 253/2001: 7 VII PD 293/2001: 7 IV Presidential Legislative Act of 21 December 2001: 3 IV D 9 L 2990/2002: 3 IV D 9 L 2992/2002: 12 I B L 2993/2002: 16 II L 3001/2002: 3 I E L 3009/2002: 19 II D L 3010/2002: 8 VI L 3014/2002: 19 II D L 3015/2002: 19 II D L 3016/2002: 12 I B L 3021/2002: 12 II C L 3023/2002: 3 III A 2 L 3028/2002: 8 VI, 20 II E 9 L 3029/2002: 15 II A, 15 III B L 3038/2002: 3 II B 6 L 3043/2002: 6 II B ftn. 12, 16 IX A L 3044/2002: 8 IV, 8 VI L 3045/2002: 19 II D L 3046/2002: 19 II D L 3047/2002: 19 II D L 3049/2002: 3 IV C 2, 12 I A L 3057/2002: 11 V A L 3084/2002: 19 II D L 3085/2002: 19 II D L 3089/2002: 9 IV A, 9 IV B, 10 I L 3091/2002: 12 I B, 19 II A ftn. 3, 19 III A ftn. 37 PD 178/2002: 14 II C ftn. 1 PD 288/2002: 11 VIII A L 3126/2003: 3 II B 6, 3 IV A 1 L 3132/2003: 3 III C 3 (b)

Appendix I L 3137/2003: 17 I D 2 (d) L 3152/2003: 12 I B L 3156/2003: 11 III D, 12 II C L 3171/2003: 17 I D 2 (d) L 3183/2003: 11 V A PD 81/2003: 14 II I 2 PD 166/2003: 6 I B 2 (c) (ii) ftns 5 and 7 PD 332/2003: 11 VIII A, 11 VIII F PD 351/2003: 3 III A 1, 3 IV A 2 L 3228/2004: 19 II D L 3229/2004: 19 III E L 3231/2004: 3 III A 1 L 3236/2004: 3 I E L 3242/2004: 3 III A 2 L 3251/2004: 20 II A 3 (v), 20 III C 4 (e) ftns 9 and 10 L 3284/2004: 18 I A, 18 I B (e) L 3289/2004: 3 VI A 2 ftn. 22, 20 II D 1 (a) L 3296/2004: 19 II A, 19 II B ftn. 14, 19 III E ftn. 52 L 3299/2004: 19 VII A, 19 VII E ftn. 69 L 3300/2004: 19 II D L 3301/2004: 11 VII B L 3304/2004: 18 II E 1 PD 164/2004: 14 II I 2 PD 180/2004: 14 II I 2 Resolution 178/3/2004 of the Committee of Prudential Supervision and Financial Matters of the Bank of Greece: 6 I B 2 (c) (i) ftn. 4 L 3304/2005: 14 II H L 3310/2005: 12 II C L 3318/2005: 19 II D L 3330/2005: 19 II D L 3331/2005: 19 II D L 3336/2005: 19 IV A 1 ftn. 58 L 3340/2005: 12 I B L 3341/2005: 3 I E, 3 VI A 2 L 3344/2005: 3 VI A 2 ftn. 22

495 L 3345/2005: 12 II C L 3352/2005: 19 II D L 3353/2005: 19 II D L 3354/2005: 19 II D L 3355/2005: 19 II D L 3356/2005: 19 II D L 3357/2005: 19 II D L 3358/2005: 19 II D L 3359/2005: 19 II D L 3360/2005: 19 II D L 3361/2005: 19 II D L 3362/2005: 19 II D L 3363/2005: 19 II D L 3364/2005: 19 II D L 3365/2005: 19 II D L 3371/2005: 12 I B L 3373/2005: 11 VI L 3385/2005: 14 II E 1, 15 IV C L 3386/2005: 18 II A, 18 II C, 18 II C 3, 18 II C 4, 18 II C 6, 18 II E 1, 18 II E 2, 18 II G 1, 18 II H 1, 18 II H 4 L 3388/2005: 16 II L 3401/2005: 12 I B L 3406/2005: 19 II D L 3407/2005: 19 II D L 3417/2005: 3 I E L 3419/2005: 11 I, 12 II A (d) L 3424/2005: 11 VII A L 3427/2005: 19 II A, 19 III A, 19 III C, 19 III D, 19 VII F L 3429/2005: 3 IV C 2 PD 63/2005: 3 III C 3, 3 IV A 1 L 3458/2006: 11 VII A L 3463/2006: 3 IV B 1, 3 IV B 2, 8 IV ftn. 11 L 3464/2006: 19 II D L 3484/2006: 19 II D L 3488/2006: 14 II H L 3522/2006: 19 II A, 19 II B, 19 IV A 1 ftn. 57, 19 VII A, 19 VII D PD 150/2006: 18 II D PD 190/2006: 11 VIII A

496

Appendix I

B.

COMMUNITY LAW

1.

Regulations

3183/1980: 4 III A 1 ftn. 29

2157/2001: 12 I A

40/94: 17 I C

1030/2002: 18 II C 7 1606/2002: 12 I B 1/2003: 11 VI 343/2003: 18 II H 1 1725/2003: 12 I B 2238/2004: 12 I B 1864/2005: 12 I B

1103/97: 6 I B 2 (b) ftn. 1 974/98: 6 I B 2 (b) ftn. 1 2866/98: 6 I B 2 (b) ftn. 1 1346/2000: 11 II A 1347/2000: 17 I D 1 (d), 17 I D 2 (c) 44/2001: 16 III G and ftn. 6, 17 II, 17 III 2.

Directives

63/21: 19 VII F ftn. 70 72/166: 11 VIII A 73/239: 11 VIII A, 11 VIII F 73/240: 11 VIII A 75/129: 14 II I 1 77/91: 4 II B 3 (b) ftn. 25, 4 III A 1, 12 II C ftn. 22 77/92: 11 VIII A 77/185: 4 II B 3 (b) 77/187: 14 II C ftn. 1 78/473: 11 VIII A 78/660: 12 II H ftn. 43 78/855: 12 II I ftn. 44 79/267: 11 VIII A, 11 VIII F 79/409: 8 V A 82/891: 12 II I ftn. 44 83/349: 12 II H ftn. 43 85/337: 8 I ftn. 2 85/374: 17 I B 2 85/611: 12 I B 86/566: 19 VII F 88/357: 11 VIII A, 11 VIII F 89/48: 4 III A 2, 4 III B

89/104: 11 IV B 5 90/605: 12 IV 90/619: 11 VIII A, 11 VIII F 91/250: 11 V A, 11 V C 92/43: 8 V A 92/49: 11 VIII A, 11 VIII F 92/96: 11 VIII A, 11 VIII F 93/7: 17 I C 94/58: 13 II B 1 97/11: 8 I ftn. 2 98/50: 14 II C ftn. 1 98/71: 11 IV E 98/78: 11 VIII A 1999/44: 6 II B ftn. 12 1999/70: 14 II I 2 1999/93: 5 V D ftn. 3 2000/35: 6 I B 2 (c) (ii) ftn. 5 2000/43: 14 II H ftn. 2, 18 II E 1 2000/78: 14 II H ftn. 2, 18 II E 1 2001/17: 11 VIII A, 11 VIII F 2001/24: 11 VII A 2001/29: 11 V A ftn. 6 2001/86: 12 I A

Appendix I 2002/47: 11 VII B 2002/92: 11 VIII A 2003/6: 12 I B 2003/41: 11 VIII A 2003/48: 19 II D 2003/51: 12 I B 2003/71: 12 I B 2003/86: 18 II C ftn. 5 2003/109: 18 II C ftn. 5, 18 II D

497 2003/124: 12 I B 2003/125: 12 I B 2004/25: 12 I B 2004/38: 18 II C 7 2004/72: 12 I B 2004/81: 18 II C 4 2004/109: 12 I B 2005/68: 11 VIII A

Appendix II

International Conventions

(References are made to Chapters with their subdivisions) 1. International Convention for the protection of literary and artistic works (Brussels, 26 June 1848): 5 II E 2. International Convention for the protection of industrial property (Paris, 20 March 1883): 11 IV, 11 IV B 5 3. Convention for the protection of literary and artistic works (Bern, 9 September 1886): 5 II E, 11 V A 4. Convention for the unification of certain rules concerning assistance and salvage at sea (Brussels, 23 September 1910): 13 II B 1 5. Convention for the unification of certain rules with respect to collisions between vessels (Brussels, 23 September 1910): 13 II B 1, 13 VIII A 6. Treaty of Peace with Turkey (Lausanne, 24 July 1923): 18 I B (h) 7. Protocol on arbitration clauses (Geneva, 24 September 1923): 17 III 8. Convention for the unification of certain rules relating to the transport of goods by sea (Brussels, 25 August 1924): 13 II B 1 9. Convention for the international unification of certain rules concerning maritime liens and mortgages (Brussels, 10 April 1926): 13 IV B 1 10. Convention for the unification of certain rules relating to the immunity of public ships (Brussels, 10 April 1926): 13 I A, 13 II B 1 11. Treaty between Greece and Great Britain on commerce and navigation (London, 16 July 1926):17 I F 12. Treaty between Greece and Spain on consular matters, navigation, commercial and civil rights and establishment (Athens, 23 September 1926): 17 I F 13. Convention on the execution of foreign arbitral awards (Geneva, 26 September 1927): 17 III 14. Convention for the unification of certain rules relating to international carriage by air (Warsaw, 12 October 1929): 6 IV A ftn. 20

500

Appendix II

15. Convention for the settlement of certain conflicts of laws in connection with bills of exchange and promissory notes (Geneva, 7 June 1930): 11 II A, 17 I B 1 (b), 17 I H 1 16. Convention providing a uniform law for bills of exchange and promissory notes (Geneva, 7 June 1930): 11 II A, 17 I B 1 (b), 17 I H 1 17. Treaty of friendship between Greece and Turkey (Ankara, 30 October 1930): 18 I B (h) 18. Convention providing a uniform law for checks (Geneva, 19 March 1931): 11 III B 19. Protocol to the Convention for the unification of certain rules relating to the immunity of public ships (Brussels, 24 May 1934): 13 II B 1 20. Treaty between Greece and Argentina on commerce and navigation (Buenos Aires, 23 September 1938): 17 I F 21. Convention concerning the application of the principles of the right to organize and to bargain collectively (Geneva, 1 August 1949): 14 III B 22. Convention concerning the protection of wages (Geneva, 1 August 1949): 14 II D 23. European Convention for the protection of human rights and fundamental freedoms (Rome, 4 November 1950): 3 III A 1, 3 V C 2, 12 II C, 16 VIII A 24. Treaty establishing the European Coal and Steel Community (Paris, 18 April 1951): 4 I ftn. 1 25. Convention relating to the status of refugees (Geneva, 18 July 1951): 18 II A, 18 II H 3 26. Treaty of friendship, commerce and navigation between the Kingdom of Greece and the United States of America (Athens, 3 August 1951): 17 I F 27. First (additional) Protocol to the European Convention for the protection of human rights and fundamental freedoms (Paris, 20 March 1952): 3 III A 1, 3 IV D 7, 3 IV D 9, 3 V C 2 28. Convention for the unification of certain rules concerning the courts having jurisdiction to settle private disputes arising from collision between ships (Brussels, 10 May 1952): 13 II B 1 29. Convention relating to the arrest of seagoing ships (Brussels, 10 May 1952): 13 II B 1, 13 IV C 1 30. Universal copyright Convention (Geneva, 6 September 1952): 11 V A 31. Convention between the Hellenic Republic and the United States of America on the avoidance of double taxation and prevention of tax evasion in relation to income tax (Athens, 20 February 1953): 19 II D 32. Convention between the Hellenic Republic and the Kingdom of Great Britain and Northern Ireland on the avoidance of double taxation and prevention of tax evasion in relation to income tax (Athens, 25 June 1953): 19 II D 33. Protocol to amend the Convention for the unification of certain rules relating to international carriage by air (The Hague, 28 September 1955): 6 IV A ftn. 20 34. Convention on the law applicable to child support and maintenance (The Hague, 24 October 1956): 17 I D 2 (d)

Appendix II

501

35. Treaties setting up the European Atomic Energy Community and the European Economic Community (Rome, 25 March 1957): 4 I ftn. 1 36. European Convention on Extradition (Paris, 13 December 1957): 20 III C 4 (e) 37. Convention concerning the recognition and enforcement of judgments of child support and maintenance (The Hague, 15 April 1958): 17 I D 2 (d) 38. Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958): 16 XII A, 17 III 39. European Convention on mutual assistance in criminal matters (Strasbourg, 20 April 1959): 20 III C 4 (e) 40. Agreement between the Hellenic Republic and the Kingdom of Denmark on reciprocal tax exemption from income taxes on transport by sea and air (Athens, 4 March 1961): 19 II D 41. Convention on diplomatic relations (Vienna, 18 April 1961): 18 II D 42. Convention abolishing the requirement of legalization for foreign public documents (The Hague, 5 October 1961): 13 III C 43. Convention on the conflicts of laws relating to the form of testamentary dispositions (The Hague, 5 October 1961): 17 I E 44. Convention between the Kingdom of Greece and the Kingdom of Sweden on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Athens, 6 October 1961): 19 II D 45. European Social Charter (Turin, 18 October 1961): 3 VI A 2 46. International Convention for the protection of performers, producers of phonograms and broadcasting corporations (Rome, 26 October 1961): 11 V A 47. Agreement between the Kingdom of Greece and the Swiss Federal Council on the avoidance of double taxation of income resulting from ship or aircraft exploitation (Athens, 12 June 1962): 19 II D 48. Procès verbaux between Greece and Ethiopia on the avoidance of double taxation of profit of maritime and air-transport companies (Addis Ababa, 7 November 1962): 19 II D 49. Protocol No. 2 to the Convention for the protection of human rights and fundamental freedoms, conferring upon the European Court of Human Rights competence to give advisory opinions (Strasbourg, 6 May 1963): 3 VI A 2 50. Protocol No. 3 to the Convention for the protection of human rights and fundamental freedoms, amending articles 29, 30 and 34 of the Convention (Strasbourg, 6 May 1963): 3 VI A 2 51. Agreement between the Kingdom of Greece and the People’s Republic of Romania on exemption from taxation of maritime and air-transport profit (Athens, 20 July 1963): 19 II D 52. Convention between the Kingdom of Greece and the French Republic on the avoidance of double taxation and rules and mutual administrative assistance on income tax (Athens, 21 August 1963): 19 II D 53. Convention on the facilitation of marriages abroad (Paris, 10 September 1964): 17 I D 1 (a) 54. Agreement between the Kingdom of Greece and the Republic of India on the avoidance of double taxation in relation to income tax (New Delhi, 11 February 1965): 19 II D

502

Appendix II

55. Convention on the settlement of investment disputes between states and nationals of other states (Washington, 18 March 1965): 17 III 56. Convention between the Kingdom of Greece and the Republic of Italy on the avoidance of double taxation in relation to income tax (Athens, 19 March 1965): 19 II D 57. Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters (The Hague, 15 November 1965): 17 II 58. Convention on load lines (London, 5 April 1966): 13 II B 1 59. Agreement between the Kingdom of Greece and the Federal Republic of Germany on the avoidance of double taxation and rules of mutual administrative assistance in relation to income, capital and trade taxes (Athens, 18 April 1966): 19 II D 60. International Covenant on civil and political rights (New York, 16 December 1966): 3 VI A 2, 16 XIII D 61. International Covenant on economic, social and cultural rights (New York, 16 December 1966): 3 VI A 2 62. Protocol to the Convention on the status of refugees (New York, 31 January 1967): 18 II A 63. Agreement between the Kingdom of Greece and the Republic of Lebanon on exemption from income tax of profit resulting from maritime and air-transport activity (Beirut, 13 March 1967): 19 II D 64. European Convention for the adoption of children (Strasbourg, 24 April 1967): 9 V A 65. Convention regarding the protection of rights concerning ships under construction (Brussels, 27 May 1967): 13 II B 1 66. Convention amending the International Convention for the protection of literary and artistic works (Stockholm, 14 July 1967): 11 IV ftn. 3 67. Protocol to the Convention for the unification of certain rules relating to the transport of goods by sea (Brussels, 23 February 1968): 13 II B 1 68. Convention between the Kingdom of Greece and the Republic of Cyprus on the avoidance of double taxation and tax evasion in relation to income tax (Athens, 30 March 1968): 19 II D 69. Convention between Greece and Belgium on the avoidance of double taxation and the settlement of certain other issues relating to income tax (Athens, 24 May 1968): 19 II D 70. European Convention on information on foreign law (London, 7 June 1968): 17 I H 5 71. Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels, 27 September 1968): 16 III G ftn. 7, 17 II 72. Agreement between the Kingdom of Greece and the Syrian Arab Republic on the avoidance of double taxation of profit resulting from maritime and airtransport activity (Athens, 17 October 1968): 19 II D 73. Convention concerning ganging of ships (London, 24 June 1969): 13 III A 74. International Convention on civil liability for oil pollution damage (Brussels, 29 November 1969): 6 IV A ftn. 20, 13 II B 1

Appendix II

503

75. Agreement concerning the international classification of goods and services for the purposes of the registration of marks (Nice, 15 June 1970) [as revised in Stockholm (14 July 1976), Geneva (13 May 1977) and amended on 28 September 1979]: 17 I C 76. Patent cooperation Treaty (Washington, 19 June 1970): 11 IV D in f., 17 I C 77. Convention on legitimation by marriage (Rome, 10 September 1970): 17 I D 2 (b) 78. Convention between the Kingdom of Greece and the Republic of Austria on the avoidance of double taxation on income and capital tax (Vienna, 22 September 1970): 19 II D 79. Convention on the law applicable to traffic accidents (The Hague, 4 May 1971): 17 I B 2 80. Act concerning the protection of literary and artistic works (Paris, 24 July 1971): 5 II E, 11 V A 81. Convention for the suppression of unlawful acts against the safety of civil aviation (Montreal, 23 September 1971): 20 II A 3 (v) 82. Convention on the establishment of an international fund for compensation for oil pollution damage (Brussels, 18 December 1971): 13 II B 1 83. Agreement between the Hellenic Republic and the People’s Republic of China on sea transport (Beijing, 23 May 1973): 19 II D 84. Convention on the law applicable to maintenance obligations (The Hague, 2 October 1973): 17 I D 2 (d) 85. Convention on the law applicable to products liability (The Hague, 2 October 1973): 17 I B 2 86. Convention on the recognition and enforcement of decisions relating to maintenance obligations (The Hague, 2 October 1973): 17 I D 2 (d) 87. Convention on the grant of European patents (Munich, 5 October 1973): 11 IV D 88. Convention for the prevention of pollution from ships (London, 2 November 1973): 13 II B 1 89. Convention for the safety of life at sea (London, 1 November 1974): 13 II B 1 90. Convention concerning the carriage of passengers and their luggage by sea and Protocol thereof (Athens, 13 December 1974): 13 II B 1 91. European Convention on the legal status of children born out of wedlock (Strasbourg, 15 October 1975): 9 IV C, 17 I D 2 (a) 92. Convention concerning minimum standards in merchant ships (Geneva, 29 October 1976): 13 II B 1 93. Convention on limitation of liability for maritime claims (London, 19 November 1976): 13 II B 1, 13 V B 94. European Convention on the suppression of terrorism (Strasbourg, 27 January 1977): 20 II A 3 (v) 95. Agreement between Greece and Australia on the avoidance of double taxation of income from international air transport (Canberra, 5 May 1977): 19 II D 96. Protocol relating to the International Convention for the prevention of pollution from ships (London, 17 February 1978): 13 II B 1

504

Appendix II

97. Protocol relating to the International Convention for the safety of life at sea (London, 17 February 1978): 13 II B 1 98. Additional Protocol to the European Convention on information on foreign law (Strasbourg, 15 March 1978): 17 I H 5 99. Additional Protocol to the European Convention on mutual assistance in criminal matters (Strasbourg, 17 March 1978): 20 III C 4 (e) 100. Agreement between the Kingdom of Greece and Islamic Republic of Pakistan on exemption from taxation of profit from maritime and air transport (Islamabad, 7 May 1978): 19 II D 101. Convention on standards of training, certification and watchkeeping for seafarers (London, 7 August 1978): 13 II B 1 102. Treaty of accession of Greece to the European Communities (Athens, 28 May 1979): 3 I E, 4 I, 4 II A 1 103. Convention between the Hellenic Republic and the Republic of Finland on the avoidance of double taxation in relation to income tax and capital tax (Athens, 21 January 1980): 19 II D 104. Convention on the international sale of goods (Vienna, 11 April 1980): 17 I B 1 (b) 105. European Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children (Luxembourg, 20 May 1980): 17 I D 2 (d) 106. Convention on the law applicable to contractual obligations (Rome, 19 June 1980): 17 I B 1 (b) 107. Agreement between the Hellenic Republic and the Kingdom of Morocco on the avoidance of double taxation of profit resulting from ship and aircraft exploitation (Rabat, 28 July 1980): 19 II D 108. Convention on the civil aspects of international child abduction (The Hague, 25 October 1980): 17 I D 2 (c), 17 I D 2 (d), 17 I H 1 109. Convention concerning the promotion of collective bargaining (Geneva, 19 June 1981): 14 III B 110. Convention and Protocol between the Hellenic Republic and the Kingdom of the Netherlands on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Athens, 16 July 1981): 19 II D 111. Convention on the law of the sea (Montego Bay, 10 December 1982): 13 I A 112. Protocol No. 6 to the Convention for the protection of human rights and fundamental freedoms, concerning the abolition of the death penalty (Strasbourg, 28 April 1983): 3 VI A 2, 20 II D 1 (a) 113. Convention and Protocol annexed thereto between the Hellenic Republic and the People’s Republic of Hungary on the avoidance of double taxation in relation to income and capital taxes (Budapest, 25 May 1983): 19 II D 114. Convention and Protocol between the Hellenic Republic and the Swiss Federation on the avoidance of double taxation in relation to income tax (Bern, 16 June 1983): 19 II D

Appendix II

505

115. Protocol No. 7 to the Convention for the protection of human rights and fundamental freedoms (Strasbourg, 22 November 1984): 3 VI A 2 116. Convention against torture and other cruel, inhuman or degrading treatment or punishment (New York, 10 December 1984): 20 II E 4 117. Protocol No. 8 to the Convention for the protection of human rights and fundamental freedoms (Vienna, 19 March 1985): 3 VI A 2 118. Treaty concerning the accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community (Lisbon and Madrid, 12 June 1985): 3 I E 119. Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (Schengen, 14 June 1985): 18 II B ftn. 4, 18 II G 3, 18 II H 1, 20 III C 4 (e) 120. Convention on the law applicable to trusts and on their recognition (The Hague, 1 July 1985): 17 I C 121. European Charter of local self-government (Strasbourg, 15 October 1985): 3 IV B 2 122. Single European Act (Luxembourg, 17 February 1986/The Hague, 28 February 1986): 3 I E 123. Agreement between the Hellenic Republic and the People’s Republic of Czechoslovakia on the avoidance of double taxation and prevention of tax evasion in relation to income taxation (Athens, 23 October 1986): 19 II D 124. Convention and Protocol between the Hellenic Republic and the Republic of Italy on the avoidance of double taxation in relation to income and capital taxes (Athens, 3 September 1987): 19 II D 125. Agreement between the Hellenic Republic and the People’s Republic of Poland on the avoidance of double taxation in relation to income and capital taxes (Athens, 20 November 1987): 19 II D 126. Convention and Protocol between the Hellenic Republic and the Kingdom of Norway on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Oslo, 27 April 1988): 19 II D 127. Additional Protocol to the European Social Charter (Strasbourg, 5 May 1988): 3 VI A 2 128. Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano, 16 September 1988): 17 III 129. First Protocol on the interpretation of the 1980 Convention on the law applicable to contractual obligations by the European Court of Justice (Brussels, 19 December 1988): 17 I B 1 (b) ftn. 3 130. Second Protocol conferring on the European Court of Justice powers to interpret the 1980 Convention on the law applicable to contractual obligations (Brussels, 19 December 1988): 17 I B 1 (b) ftn. 3 131. International Convention on salvage (London, 28 April 1989): 13 II B 1, 13 VIII C 132. Convention between the Hellenic Republic and the Kingdom of Denmark on the avoidance of double taxation and prevention of tax evasion in relation to income tax and capital tax (Copenhagen, 18 May 1989): 19 II D

506

Appendix II

133. Protocol relating to the Madrid Agreement concerning the international registration of marks (Madrid, 27 June 1989): 11 IV B 5, 17 I C 134. Agreement relating to Community patents (Luxembourg, 15 December 1989): 11 IV D in f. 135. Convention implementing the Schengen Agreement of 14 June 1985 (Schengen, 19 June 1990): 18 II B ftn. 4 136. Protocol No. 9 to the Convention for the protection of human rights and fundamental freedoms (Rome, 6 November 1990): 3 VI A 2 137. Convention for the simplification of procedures for claiming support and maintenance (Rome, 6 November 1990): 17 I D 2 (c) 138. Convention between the Hellenic Republic and the Republic of Bulgaria on the avoidance of double taxation in relation to income tax and capital tax (Athens, 15 February 1991): 19 II D 139. Convention and Protocol between the Hellenic Republic and the Republic or Romania on the avoidance of double taxation in relation to income and capital taxes (Athens, 17 September 1991): 19 II D 140. Protocol amending the European Social Charter (Turin, 21 October 1991): 3 VI A 2 141. Convention between the Hellenic Republic and the Grand Duchy of Luxembourg on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Athens, 22 November 1991): 19 II D 142. Treaty on European Union (Maastricht, 7 February 1992): 3 I E, 4 I ftn. 1 143. Protocol to amend the international Convention on civil liability for oil pollution damage (London, 27 November 1992): 13 II B 1 144. Agreement on trade-related aspects of intellectual property rights (Marrakesh, 15 April 1994): 11 V A 145. Protocol No. 11 to the Convention for the protection of human rights and fundamental freedoms, restructuring the control machinery established thereby (Strasbourg, 11 May 1994): 3 VI A 2 146. Treaty concerning the accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union (Corfu, 24 June 1994): 3 I E 147. Convention on simplified extradition procedure between the Member States of the European Union (Brussels, 10 March 1995): 20 III C 4 (e) 148. Convention between the Hellenic Republic and the Republic of Korea on the avoidance of double taxation and tax evasion in relation to income tax (Athens, 20 March 1995): 19 II D 149. Convention between the Hellenic Republic and the Republic of Albania on the avoidance of double taxation relating to income tax and capital tax (Tirana, 14 July 1995): 19 II D 150. Agreement between the Hellenic Republic and the People’s Republic of China on sea transport, (Beijing, 16 October 1995): 19 II D 151. Convention between Greece and Israel on the avoidance of double taxation and prevention of tax evasion in relation to income tax (Jerusalem, 24 October 1995): 19 II D

Appendix II

507

152. European Convention on the exercise of children’s rights (Strasbourg, 25 January 1996): 17 I D 2 (d) 153. Convention on extradition between the Member States of the European Union (Dublin, 27 September 1996): 20 III C 4 (e) 154. Convention between the Hellenic Republic and the Republic of Croatia on the avoidance of double taxation relating to income tax and capital tax (Zagreb, 18 October 1996): 19 II D 155. Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility for the protection of children (The Hague, 19 October 1996): 17 I D 2 (d) 156. WIPO performances and phonograms Treaty (Geneva, 20 December 1996): 11 V A 157. Convention between the Hellenic Republic and the Republic of Uzbekistan on the avoidance of double taxation in relation to income and property taxes (Athens, 1 April 1997): 19 II D 158. Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine (Oviedo, 4 April 1997): 5 II B 159. Second Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the protection of the European Communities’ Financial Interests (Brussels, 19 June 1997): 20 II B 2 160. Treaty of Amsterdam amending the Treaty on European Union and the Treaties establishing the European Communities (Amsterdam, 2 October 1997): 3 I E, 4 I ftn. 1 161. Convention between the Hellenic Republic and the Republic of South Africa on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Pretoria, 19 November 1998): 19 II D 162. Convention between Greece and Georgia on the avoidance of double taxation in relation to income tax and capital tax (Tbilisi, 10 May 1999): 19 II D 163. Convention between the Hellenic Republic and the Republic of Armenia on the avoidance of double taxation and tax evasion in relation to income tax and capital tax (Yerevan, 12 May 1999): 19 II D 164. Convention between Greece and Portugal on the avoidance of double taxation and prevention of tax evasion in relation to income tax (Lisbon, 2 December 1999): 19 II D 165. Convention between the Hellenic Republic and the Russian Federation on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Moscow, 26 June 2000): 19 II D 166. Protocol amending the Convention between the Hellenic Republic and the Republic of Bulgaria on the avoidance of double taxation in relation to income tax and capital tax (Plovdiv, 18 July 2000): 19 II D 167. Convention between Greece and Ukraine on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Kiev, 6 November 2000): 19 II D

508

Appendix II

168. Convention between the Hellenic Republic and the Kingdom of Spain on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Madrid, 4 December 2000): 19 II D 169. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts (Nice, 26 February 2001): 3 I E, 4 I ftn. 1 170. Convention between the Hellenic Republic and the Republic of Slovenia on the avoidance of double taxation in relation to income and capital taxes (Athens, 5 June 2001): 19 II D 171. Convention between the Hellenic Republic and the Republic of Latvia on the avoidance of double taxation and prevention of tax evasion in relation to income and capital tax (Athens, 27 March 2002): 19 II D 172. Protocol No. 13 to the Convention for the protection of human rights and fundamental freedoms, concerning the abolition of the death penalty in all circumstances (Vilnius, 3 May 2002): 3 VI A 2 173. Convention between the Hellenic Republic and the Republic of Lithuania on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Athens, 15 May 2002): 19 II D 174. Agreement between the Hellenic Republic and the People’s Republic of China on the avoidance of double taxation and tax evasion relating to income tax (Beijing, 3 June 2002): 19 II D 175. European Council Framework Decision on the European arrest warrant (Luxembourg, 13 June 2002): 20 III C 4 (e) 176. Convention between Greece and Kuwait on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Kuwait City, 2 March 2003): 19 II D 177. Treaty concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (Athens, 16 April 2003): 3 I E 178. Agreements on extradition and mutual legal assistance between the European Union and the United States of America (Washington, 25 June 2003): 20 III C 4 (e) 179. Convention between the Hellenic Republic and the Republic of Ireland on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Athens, 24 November 2003): 19 II D 180. Agreement between the Hellenic Republic and the Republic of Turkey on the avoidance of double taxation in relation to income tax (Ankara, 2 December 2003): 19 II D 181. Agreement between the Hellenic Republic and the Republic of Moldavia on the avoidance of double taxation in relation to income and property tax (Chisinau, 29 March 2004): 19 II D

Appendix II

509

182. Convention between the Hellenic Republic and the United States of Mexico on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Mexico City, 13 April 2004): 19 II D 183. Protocol No. 14 to the Convention for the protection of human rights and fundamental freedoms, amending the control system of the Convention (Strasbourg, 13 May 2004): 3 VI A 2 184. Treaty establishing a Constitution for Europe (Rome, 29 October 2004): 3 I E, 3 VI A 2, 4 I ftn. 1 185. Agreement between the Hellenic Republic and the Arab Republic of Egypt on the avoidance of double taxation in relation to income tax and capital tax (Cairo, 27 November 2004): 19 II D 186. Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union (Luxembourg, 25 April 2005): 3 I E 187. Protocol between the Hellenic Republic and the Kingdom of the Netherlands amending the Convention and Protocol between the Hellenic Republic and the Kingdom of the Netherlands on the avoidance of double taxation and prevention of tax evasion in relation to income and capital taxes (Athens, 18 January 2006): 19 II D

Appendix III

Cases

(References are made to Chapters with their subdivisions) A.

GREEK CASES

1. Supreme Special Court (SSC) SSC 9/1980: 15 III B ftn. 15 SSC 16/1983: 15 I ftn. 2 SSC 10/1987: 3 IV D 7

SSC 44/1991: 9 I ftn. 1 SSC 3/2001: 4 III B

2. Council of State (SE) SE 97/1929: 3 IV D 2 SE 1104/1963: 15 III A ftn. 11 SE 1603/1964: 3 IV D 1 SE 2253/1980: 15 III A ftn. 11 SE 626/1981: 15 III A ftn. 11 SE 900/1983: 15 III A ftn. 12 SE 4190/1983: 4 II A 1 SE 815/1984: 4 III A 2 ftn. 43 SE 276/1986: 3 IV D 4 SE (full bench) 2152/1986: 4 II A 1 SE (full bench) 2605/1986: 4 III A 1 SE (full bench) 3146/1986: 8 II ftn. 6 SE (full bench) 10/1988: 8 II ftn. 5

SE 3312/1989: 4 II B 2, 4 II B 3 (b) SE 3585/1990: 3 IV D 3 SE 1434/1991: 3 IV D 4 SE 1974/1991: 12 II A (a) SE 3596/1991: 3 II B 3 SE 965–970/1993: 19 II A ftn. 13 SE 3502/1994: 4 II A 2 SE 1545/1995: 4 II A 2 SE 5340/1995: 19 II A ftn. 13 SE 249/1997: 4 II A 2, 4 III B SE 4666/1997: 3 IV D 3 SE (full bench) 3440–3444/1998: 3 IV A 2 ftn. 7, 3 IV B 2 ftn. 8 SE (full bench) 3457/1998: 4 III A 2

512 SE (full bench) 4025/1998: 19 I ftn. 1 SE 4674/1998: 4 II A 2 SE 2079/1999: 4 III B SE 2245/1999: 4 III B SE 2522/2000: 3 IV D 2 SE 3249/2000: 8 II ftn. 4 SE 2704/2001: 4 III A 1 SE 397/2002: 12 II E ftn. 31 SE 708/2002: 12 I A ftn. 1 SE 1163/2002: 8 II ftn. 4 SE 1312/2002: 4 III A 1 SE 2188/2002: 15 IV B ftn. 19 SE 2319/2002: 8 II ftn. 4 SE 2506/2002: 8 II ftn. 4 SE (full bench) 1528/2003: 8 II ftn. 5 SE 1882/2003: 3 IV D 2 SE 2983/2003: 15 IV B ftns 17 and 18 SE 3382/2003: 15 IV B ftn. 19

Appendix III SE 3977/2003: 4 II B 3 (b) ftn. 26 SE 351/2004: 15 IV B ftn. 18 SE 2569/2004: 8 II ftn. 4 SE 2727/2004: 15 IV B ftn. 20 SE 3635/2004: 15 IV B ftn. 21 SE 87/2005: 15 IV B ftn. 20 SE 96/2005: 15 IV B ftn. 21 SE 163/2005: 15 III B ftn. 15 SE 625/2005: 15 III A ftn. 14 SE 627/2005: 15 IV B ftn. 21 SE 638/2005: 15 III B ftn. 15 SE 693/2005: 15 IV B ftn. 20 SE 941/2005: 15 IV B ftn. 17 SE 982/2005: 8 II ftn. 7 SE 1558/2005: 15 II B ftn. 9 SE 1567/2005: 8 II ftn. 5 SE 2604/2005: 8 II ftn. 7 SE (full bench) 3661/2005: 3 IV B 2, 8 IV ftn. 12

3. Areios Pagos (AP) AP 727/1969: 3 IV D 7 AP 840/1976: 15 III A ftn. 14 AP 1286/1977: 17 I E ftn. 19 AP (full bench) 461/1978: 17 I F ftn. 22 AP 492/1979: 17 I H 3 AP 986/1979: 15 III A ftn. 14 AP 998/1982: 17 I G AP 1509/1982: 16 XII C ftn. 12 AP 1268/1984: 9 VI C ftn. 25 AP 180/1986: 9 VII A ftn. 30 AP 283/1986: 9 VII A ftn. 30 AP 326/1986: 9 III A ftn. 8 AP 770/1986: 9 VII A ftn. 31 AP 1079/1986: 9 VI C ftn. 26 AP 1124/1986: 4 III A 1 AP 1955/1986: 9 VII A ftn. 31

AP 153/1987: 9 VI C ftn. 27 AP 197/1987: 9 VII A ftn. 31 AP 561/1987: 9 II G ftn. 4 AP 648/1987: 9 II G ftn. 4 AP 1241/1987: 9 VII A ftn. 31 AP 1325/1987: 9 III A ftn. 8 AP 1667/1987: 9 III A ftn. 7 AP 897/1988: 9 II G ftn. 4 AP 1239/1988: 9 VI C ftn. 25 AP 1304/1988: 9 VI C ftn. 27 AP 1477/1988: 9 IV B ftn. 14 AP 46/1989: 9 VI C ftn. 25 AP 284/1989: 17 I G ftn. 33 Ap 346/1989: 17 I G ftn. 34 AP 577/1989: 9 VII A ftn. 30 AP 825/1989: 17 I H 5 ftn. 41 AP (full bench) 32/1990: 9 IV B ftn. 15 AP (full bench) 39/1990: 4 III A 2 ftn. 45

Appendix III AP 305/1990: 17 I H 3 AP 491/1990: 12 II E ftn. 35 AP 949/1990: 17 I F ftn. 23 AP 1082/1990: 17 I F ftn. 22 AP 1462/1990: 12 IV ftn. 46 AP 88/1991: 17 III ftn. 45 AP 178/1991: 17 I F ftn. 22 AP 461/1991: 9 II E ftn. 2 AP 711/1991: 17 I F ftn. 22 AP 657/1992: 4 II A 1 ftn. 3 AP 658/1992: 4 II A 1 ftn. 3 AP 1360/1992: 4 III B ftn. 51 AP 428/1994: 17 I D 1 (b) ftn. 12 AP 583/1994: 10 II H 5 ftn. 6 AP 19/1995: 17 I B 2 ftn. 5, 17 I G AP 583/1995: 17 I E ftn. 20 AP 218/1996: 17 I F ftn. 22 AP 1180/1996: 11 VIII B 2 ftn. 30 AP 1245/1996: 17 I E ftn. 20 AP (full bench) 39/1997: 9 II E ftn. 2 AP 1341/1997: 12 II A (e) ftn. 19 AP (full bench) 40/1998: 3 IV D 7, 3 IV D 9 AP (full bench) 2/1999: 17 I F AP 324/1999: 12 II E ftn. 40 AP 123/2000: 17 I E ftn. 20 AP 792/2000: 9 II G ftn. 5 AP 795/2000: 12 II C ftn. 24 AP 1546/2000: 9 IV C ftn. 20 AP 1597/2000: 16 XIII D ftn. 13 AP 1620/2000: 9 IV B ftn. 14 AP (full bench) 18/2001: 12 II E ftn. 30 AP (full bench) 19/2001: 11 VII A ftn. 10 AP 261/2001: 17 I F ftns 22 and 31 AP 335/2001: 17 I F AP 589/2001: 11 VII B ftn. 12 AP 1219/2001: 11 VII B ftn. 12 AP (full bench) 2/2003: 17 I F

513 AP 493/2003: 10 II C ftn. 3 AP 564/2003: 9 I ftn. 1, 9 IV C ftn. 18 AP 706/2003: 17 II ftn. 42 AP 1031/2003: 10 II D ftn. 4 AP 1145/2003: 17 I G AP (full bench) 5/2004: 12 II E ftn. 32 AP (full bench) 7/2004: 10 II A ftn. 2 AP (full bench) 14/2004: 9 I ftn. 1, 9 IV C ftns 17–19 AP 551/2004: 10 II F ftn. 5 AP 809/2004: 9 IV C ftn. 20 AP 916/2004: 12 II D 3 ftn. 27 AP 1418/2004: 9 II F ftn. 3 AP 1642/2004: 12 II E ftn. 37 AP 3/2005: 9 IV B ftn. 15 AP 5/2005: 9 VII A ftn. 31 AP (full bench) 17/2005: 15 III A ftn. 12 AP (full bench) 23/2005: 16 XIII D ftn. 13 AP 151/2005: 12 II E ftn. 41 AP 384/2005: 17 I G ftn. 35, 17 IH3 AP 417/2005: 9 VI B ftn. 24 AP 430/2005: 11 VII B ftn. 12 AP 434/2005: 9 I ftn. 1 AP 581/2005: 12 II E ftn. 36 AP 602/2005: 9 II F ftn. 3 AP 765/2005: 12 II E ftn. 29 AP 1103/2005: 9 VII D ftn. 33 AP 1301/2005: 9 III A ftn. 6 AP 1314/2005: 12 II E ftn. 37 AP 1435/2005: 12 II C ftn. 25 AP 1780/2005: 3 IV D 7, 3 IV D 9 AP 1813/2005: 9 IV C ftn. 19 AP 1848/2005: 9 II F ftn. 3 AP 1910/2005: 9 VII A ftn. 30 AP 1922/2005: 9 II G ftn. 5 AP (full bench) 8/2006: 12 II E ftn. 38 AP 474/2006: 12 II E ftn. 33 AP 518/2006: 10 V B ftn. 7

514 4.

Appendix III Courts of Appeal (CA, DE)

CA (Athens) 7046/1984: 9 III C ftn. 10 CA (Athens) 7212/1984: 9 II E ftn. 2 CA (Athens) 5125/1985: 9 IV C ftn. 20 CA (Athens) 8777/1985: 4 III A 1 CA (Athens) 8971/1985: 4 II B 2 CA (Athens) 2184/1987: 4 II B 3 (b) CA (Athens) 7779/1987: 9 IV C ftn. 19 CA (Thessaloniki) 25/1987: 9 IV C ftn. 16 DE (Athens) 2343/1987: 4 II B 2 ftn. 18 CA (Athens) 11488/1988: 9 III C ftn. 10 CA (Athens) 14059/1988: 17 I B 1 (a) CA (Thessaloniki) 79/1989: 9 III C ftn. 10 CA (Thessaloniki) 2464/1989: 9 III C ftn. 11 CA (Athens) 3434/1990: 12 III F ftn. 45 CA (Athens) 6599/1990: 17 I E ftn. 18 CA (Athens) 8047/1990: 17 I D 1 (b) ftn 11 CA (Thessaloniki) 3570/1990: 12 II E ftn. 28 CA (Athens) 9042/1992: 9 III A ftn. 8 CA (Athens) 9162/1992: 4 II A 2 ftn. 11, 4 II B 3 (b) ftn. 26, 12 II C ftn. 23 CA (Athens) 2921/1993: 9 IV C ftn. 16 CA (Piraeus) 12/1994: 17 II ftn. 43 CA (Athens) 10719/1995: 17 I D 1 (d) CA (Thessaloniki) 3662/1996: 17 I D 2 (d) ftn. 17

CA (Thessaloniki) 998/1997: 17 I D 2 (d) ftn. 17 CA (Thessaloniki) 1957/1997: 17 I D 2 (d) ftn. 17 CA (Athens) 2758/1998: 9 VII A ftn. 31 CA (Athens) 4204/1998: 9 III C ftn. 10 CA (Thessaloniki) 2574/1999: 9 III A ftn. 7 CA (Larissa) 565/2000: 9 III B ftn. 9 CA (Thessaloniki) 3142/2000: 9 III B ftn. 9 CA (Athens) 2171/2002: 9 I ftn. 1, 9 IV C ftn. 18 CA (Dodecanese) 5/2002: 9 II E ftn. 2 CA (Piraeus) 403/2002: 12 II A (e) ftn. 20 CA (Piraeus) 544/2002: 9 II G ftn. 4 CA (Thessaloniki) 2855/2002: 10 VI ftn. 8 CA (Athens) 8716/2003: 9 III C ftn. 12 CA (Piraeus) 161/2003: 17 I F ftn. 25 CA (Piraeus) 504/2003: 12 II A (e) ftn. 20 CA (Thessaloniki) 432/2003: 9 VII D ftn. 34 CA (Thessaloniki) 2044/2003: 12 II A (e) ftn. 19 CA (Athens) 7119/2004: 12 II E ftn. 34 CA (Patras) 470/2004: 9 II G ftn. 5 CA (Piraeus) 159/2004: 17 I F ftn. 25 CA Piraeus 403/2004: 17 I F ftn. 25 CA (Piraeus) 574/2004: 12 II A (e) ftn. 20 CA (Thessaloniki) 919/2004: 12 II E ftn. 29 CA (Thessaloniki) 1017/2004: 12 II F ftn. 42

Appendix III CA (Thessaloniki) 3171/2004: 9 VII D ftn. 33 CA (Athens) 2586/2005: 9 VII A ftn. 28 CA (Athens) 2807/2005: 19 III D ftn. 51 CA (Athens) 4287/2005: 9 VII A ftn. 29 5.

CA (Athens) 7013/2005: 12 II F ftn. 42 CA (Larissa) 16/2005: 9 VI C ftns 26 and 27 CA (Thessaloniki) 566/2005: 17 I F CA (Thessaloniki) 792/2005: 9 II G ftn. 4 CA (Piraeus) 68/2005: 9 VI C ftn. 25 CA (Piraeus) 907/2005: 12 II C ftn. 25

Courts of First Instance (DP, JP, MP, PP)

Athens Tax Court 14150/1963: 17 I C ftn. 10 MP (Athens) 7960/1981: 17 I C ftn. 9 MP (Piraeus) 556/1981: 4 II B 1 DP (Piraeus) 1095/1983: 4 II A 1 ftn. 5 DP (Athens) 1780/1985: 4 III A 2 ftn. 44 PP (Athens) 5737/1986: 4 III A 1 PP (Athens) 7097/1986: 4 III A 1 DP (Athens) 12912/1987: 4 II B 3 (b) ftn. 22 MP (Athens) 3283/1987: 9 VII A ftn. 32 MP (Thessaloniki) 5/1989: 9 VII A ftn. 32 MP (Thessaloniki) 314/1989: 9 III B ftn. 9 PP (Piraeus) 943/1990: 17 I F ftn. 23 PP (Piraeus) 810/1994: 17 I B 1 (a) MP (Thessaloniki) 6839/1994: 17 I D 1 (c) ftn. 13 6.

515

MP (Thessaloniki) 15734/1994: 17 I E ftn. 20 MP (Piraeus) 390/1996: 17 I B 1 (b) ftn. 4 MP (Kos) 1201/2001: 17 I D 2 (d) ftn. 17 MP (Athens) 5345/2003: 12 II C ftn. 21 MP (Thessaloniki) 2735/2003: 9 IV A ftn. 13 MP (Athens) 321/2004: 4 II A 2 ftn. 11 MP (Rhodos) 704/2004: 9 V B ftn. 23 MP (Thessaloniki) 1320/2004: 9 IV A ftn. 13 MP (Volos) 314/2004: 12 II D 1 ftn. 26 PP (Athens) 419/2005: 12 II E ftn. 39 PP (Athens) 447/2005: 9 V B ftn. 22 PP (Athens) 520/2005: 9 V B ftn. 21

Non-judicial Decisions

ASE Board of Directors 18/1999: 12 IB ASE Board of Directors 20/1999: 12 IB ASE Board of Directors 46/2000: 12 IB

ASE Board of Directors 47/2000: 12 IB Securities Exchange Commission 5/204/2000: 12 I B Securities Exchange Commission 14212/2000: 12 I B

516

Appendix III

State Legal Council, opinion no. 432/2000: 19 III D ftn. 50 State Legal Council, opinion no. 721/2000: 19 III D ftn. 49 Hellenic Data Protection Authority 151/2001: 11 VIII A ftn. 29 Securities Exchange Commission 3403/38/279/2003: 12 I B Hellenic Data Protection Authority 2/2004: 11 VIII A ftn. 29 B.

EUROPEAN COURT OF JUSTICE (ECJ)

13/61: 4 II B 1 26/62: 4 II B 1 ftn. 15 28/62: 4 III A 1 ftn. 28 6/64: 4 II A 2 ftn. 8 11/70: 4 II A 1 ftns 7 and 8 127/73: 4 II B 1 155/73: 4 II B 1 41/74: 4 II B 3 (a) 283/81: 4 III A 1 ftn. 28 14/83: 4 III B ftn. 52 152/84: 4 II B 3 (a) C-4/85: 4 II B 4 ftn. 27 C-132/85: 4 II B 4 ftn. 27 C-81/87: 17 I F ftn. 32 C-53/88: 4 II B 4 ftn. 27 C-106/89: 4 III B ftn. 52 C.

Hellenic Data Protection Authority 43/2004: 11 VIII A ftn. 29 Hellenic Data Protection Authority 54/2004: 11 VIII A ftn. 29 Hellenic Data Protection Authority 16/2006: 11 VIII A ftn. 29 Hellenic Data Protection Authority 60/2006: 11 VIII A ftn. 29

C-6/90: 4 III B ftn. 58 C-9/90: 4 III B ftn. 58 C-87/90: 4 III B ftn. 55 C-210/91: 4 III B ftn. 50 C-365/93: 4 III B ftn. 61 C-430/93: 4 III B ftn. 57 C-431/93: 4 III B ftn. 57 C-147/95: 4 III A 1 ftn. 37 C-212/97: 17 I F ftn. 28 C-311/97: 12 I A ftn. 1 C-373/97: 4 III A 1 ftn. 40 C-426/98: 19 IV A 1 ftn. 61 C-294/99: 19 II C ftn. 20 C-208/00: 17 I F ftn. 28 C-167/01: 17 I F ftn. 28 C-319/02: 12 I A ftn. 1 C-446/03: 12 I A ftn. 1, 17 I F ftn. 29

OTHER

Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984): 16 III C ftn. 4 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985): 16 III C ftn. 4 European Court of Human Rights, Lykourezos v. Greece (33554/03): 3 III A 1 ftn. 6

Index

(References are made to Chapters with their subdivisions) Abortion: 20 II E 2 Absentia: 5 II C, 9 III A Absolutism: 1 IV A, 3 V C 1 Abuse of dominant position: see antitrust of right: 5 IV B, 5 VII B and Community law: 4 III A 1 and contractual clauses: 11 VII B and corporate law: 12 II D 1, 12 II E and divorce: 9 III A in labor law: 14 II H, 14 II I 1 Accession, property law: 7 IV B Accessorium sequit principali: 7 II B Accessory and property law: 7 II B Accomplice: 20 II C 2 Accretion: 10 III B Act iure gestionis: 17 II imperii: 17 II Actio in personam: 16 IV B in rem: 16 IV B mixta: 16 IV B negatoria: 7 IV D pauliana: 6 V popularis: 16 IV A Action civil: 16 VI A collective: 16 IV A ftn. 6

commencement of: 16 VI A for declaratory judgment: 16 IV B for delivery of possession of assets of the estate: 10 II G for disturbance of possession: 7 III for judicial modification of legal relationships: 16 IV B for performance: 6 I, 16 IV B see also performance for recovery of possession: 7 III inadmissible: 16 IV A negatory: 7 IV D publician: 7 IV D revendicatory: 7 IV D to set aside arbitral award: 16 XII E types of: 16 IV B Acquis communautaire: 4 I, 18 II H 1 urban: 8 II ftn. 5 Administration compulsory of debtor’s immovables or business: 16 XIII D of enterprises: 11 II B fair, principle of: 3 IV D 2 of justice, ancient Geek law: 1 II B of other persons’ affairs: 9 VII E public: see public administration Administrative acts: 3 II B 6, 3 IV D 3 individual: 3 II B 6 revocability: 3 IV D 6

518 unlawful: 3 IV D 6 void and voidable: 3 IV D 5 Administrative authorities discretionary power of: 3 IV D 2 abuse of: 3 IV D 2 Administrative coercion: 19 I ftn. 1 Administrative contracts: 3 IV D 3, 3 IV D 7 see also public contract Administrative courts: 3 II B 6, 16 II A (a) system of: 3 V C 1 see also Council of State Administrative dispute: 3 II B 6 Administrative self-control: 3 V Administrative supervision: 3 IV B 5, 3 V A 4 preventive: 3 IV B 5 repressive: 3 IV B 5 see also control, Government, petitions Administrator in bankruptcy: 11 II B Adolescents: 20 II B 6 (a) (ii) Adoption: 9 I, 9 V A and Greek nationality: 18 I B (b), 18 I C (b) conditions: 9 V B conflict of laws: 17 I D 2 (b) decision on : 9 V B effects: 9 V C of adults: 9 V C of minors: 9 V B termination: 9 V C see also child, minor Adults: 20 II B 6 (a) (ii) Affiliation proceedings: 9 IV C Affreightment: 13 VII A Agency by estoppel: 5 VII B classical Greek law: 1 II C direct: 1 III C partially disclosed: 5 VII A, 5 VII C undisclosed: 5 VII A, 5 VII C see also representation, mandate Aghion Oros: see Mount Athos Alexander the Great: 1 III A Macedonian successors of: 1 III A Aliens allogeneis: 18 II H 2 binational: 18 I B (f) duties of: 18 II E 2 entry in Greece: 18 II B denial of: 18 II B homogeneis: 18 II H 2 illegal: 18 II H 4 law of: 18 II long-term residents; 18 II D of Greek descent: 18 I A palinnostountes: 18 II H 2

Index rights of: 18 II E 2 social integration of: 18 II E 1 third-country nationals: 18 II A, 18 II H 2 undesirable: 18 II G 3 Lists of: 18 II B, 18 II G 3 see also deportation Alimony: 9 I see also divorce Allowances marriage: 4 III B Amnesty: 20 II B 7 (b) Analogy, in criminal law: 20 II A 2 (b) Ancient Greek law: 1 II early: 1 II A Annuity: 7 II C life: 6 II O Antiquities: 20 II E 9 see also cultural goods Antitrust: 11 VI control of concentrations: 11 VI dominant position: 11 VI economic dependence: 11 VI merger notification: 11 VI see also Hellenic Competition Commission Apparent authority: 5 VII A, 5 VII B Appeal classical Greek law: 1 II C extraordinary: 16 VIII A methods of: 16 VIII A on the record: 16 VIII C ordinary: 16 VIII A regular: 16 VIII C Appellation of origin: 11 IV C see also indication of source Application for annulment: 3 IV D 3 conditions: 3 V C 2 Arbitral clause: 16 XII B procedure: 16 XII C Arbitration: 16 XII agreement: 16 XII B, 16 XII D award: 16 XII E, 17 III control by courts: 16 XII E domestic: 16 XII A ex aequo et bono: 16 XII D institutional: 16 XII C international commercial: 16 XII A UNCITRAL Model Law on: 16 XII A labor law: 14 III B post-Byzantine law: 1 III C umpire: 16 XII C Arbitrator authority of: 16 XII D

Index in labor law: 14 III B public, classical Greek law: 1 II C Areios Pagos: 3 II B 1, 3 II B 6, 16 II B, 20 III A 1 in f. full bench: 16 II B panels: 16 II B see also cassation, courts, judicial precedent Aristophanes: 1 II C Aristotle: 1 II C Artificial insemination: 9 IV B Assignment of claims: 6 I J Assistance at sea: 13 VIII C Association: 5 III A, 12 I A commercial: 12 I A Assumption of debt: 6 I K Asylum seekers: 18 II A see also refugees Athonian Register: 18 I B (g) Athonias Ecclesiastic Academy: 18 II C 2 Attachment: 16 XIII D of accounts: 11 VII A in f. see also execution Attempt: 20 II C 1 abandonment of: 20 II C 1 Attorney: 16 II E apprenticeship: 16 II E fees: 16 VI G see also Code of Lawyers, Code on Attorneys Auction: 16 XIII D Audit: see tax Auditing Centers: 19 VI ftn. 65 Author see intellectual property Authorities regional: 3 IV A 2 see also decentralization independent: 3 IV A 1, 3 IV A 3 British model of: 3 IV A 3 regulatory: 3 IV A 3 Autonomy, private, principle of: 6 I C Average, common or general: 13 VIII A Balance sheet: 12 II D 1, 12 II H Balis, G.: 1 IV B Bank: 11 VII A account current: 11 VII B joint: 11 VII B annual accounts: 11 VII A capital: 11 VII A deposits inalienable: 11 VII B

519 of cash: 11 VII B of securities: 11 VII B mortgage: 11 VII B pledge: 11 VII B see also banking, merger Bank of Greece: 11 VII A debentures of: 11 VII B inalienable deposits: 11 VII B interest: 6 I B 2 (c) Banking law: 11 VII classical Greek: 1 II C post-Byzantine: 1 III C private: 11 VII B general terms and conditions: 11 VII B secrecy: 11 VII A system: 11 VII A Bankrupt: 11 II A collective settlement with creditors: 11 II B Bankruptcy: 11 II administrator: 11 II B ordinary: 11 II A see also liquidation Bar Associations: 12 I A, 16 II E Athens: 2 V C examination: 16 II E Basil I: 1 III B Basilica: 1 III B, 1 III C Benefits: see social insurance Betting: 6 II P Bill of exchange: 11 III A 1 acceptance: 11 III A 1 endorsement: 11 III A 1 and pledge: 11 III A 1 invalidity: 11 III A 1 order to pay: 6 II T, 11 III A 1 see also promissory note of Parliament: 3 III A 4 Bonds: 11 III D bearer: 6 II U Book-keeping: 19 II A Brokers: 12 I B Budget as formal statute: 2 I municipal: 3 IV B 4 vote on: 3 II B 4 Building and transfer of floor-area ratio: 8 VI illegal: 8 VI permits: 8 VI regulations: 8 VI General: 8 VI

520 Byzantine law: 1 III B as source of Greek civil law: 1 IV B Cabinet: 3 IV A 1 committees: 3 III C 3 ministers: 2 I Callimachis: 1 III C Canon law: 1 III B Canones: 1 III B Capacity to appreciate and conform: 20 II B 6 (a) to be a party: 16 IV A to conduct litigation in own name: 16 IV A to sue: 16 IV A see also juridical act Capital aid: 19 VII C, 19 VII D Capital concentration tax: 19 IV A 4 Capital, foreign: see foreign capital Capodistrias, Ioannis: 1 IV A, 1 IV B, 11 I Caracalla: 1 III A Caratzas, John: 1 III C Carriage of goods by sea: 13 VII B classical Greek law: 1 II C of passengers by sea: 13 VII C Carrier: see affreightment Cartel: see antitrust Case citation and numbering of: 2 V B Cassation: 2 I, 16 VIII E before Areios Pagos: 16 VIII E before the Council of State: 3 V C 2 Cause: 5 V F, 6 II S 1, 6 II S 2 important: 2 III termination for: 6 I E 2 Certificate of deposit: 11 III E of health: 18 II C 7 of inheritance: 10 II F, 17 I E pawn: 11 III E Certified public accountant (CPA): 12 II H Charondas: 1 II B Charter of fundamental rights of the European Union: 3 VI A 2 Chattels, enforcement on: 16 XIII D Checks: 11 III B common: 11 III C countermand: 11 III B crossed: 11 III B order to pay: 6 II T revocation: 11 III B Chief Archon: 1 II C Child

Index born out of wedlock: 9 IV C, 10 III A, 17 I D 2 (a) domicile: 9 VI A name: 9 VI A nationality: 9 VI A obligation towards parents: 9 VI B, 9 VI C, 17 I D 2 recognition: 9 VI A, 18 I B (b) safeguard of interests of: 1 IV B see also adoption, minor Church and family law: 9 I and marriage: 9 II C and state: 3 II C autocephalous: 3 II C Greek Orthodox: 1 III B, 3 II C Citizens ancient Greek law: 1 II B, 1 II C Roman in Greece: 1 III A Citizen’s Advocate: 3 V A 6 City-states: 1 II A, 1 II B, 1 II C Civil Claimant: 20 II B 2 (b) Civil courts: 16 II A (a) ordinary: 16 II B see also courts Civil Code: 1 IV B, 2 I, 5 I and administrative contracts: 3 IV D 7 and company law: 12 I A draft of 1874: 1 IV B Introductory Law of: 1 IV B, 3 IV D 8 Maridakis project: 17 I B 1 (a), 17 I F general principles of, applicability: 5 I German: 1 IV B, 5 I of 1940: 1 IV B Civil Law codification of: 1 IV B systems: 5 I Civil Law, 1856: 1 IV B Civil procedure and Constitution: 16 I Claim assertion of, by creditor: 16 XIII D joint and several: 6 I L of refund, in tax law: 19 II A preclusion: 16 IX C see also res judicata prescription: 5 VIII A 1 Classical Greek law: 1 II C Cloning: 9 IV A Close corporation: 11 IV B 1, 12 I A, 12 III administrator: 12 III C as shipowner: 13 V A capital: 12 III A, 12 III B charter: 12 III A dissolution: 12 III F

Index distribution of profits: 12 III E formation: 12 III A liquidation: 12 III F management: 12 III D meeting of members: 12 III C members: 12 III B retirement: 12 III F merger: 12 III F parts: 12 III B ‘one part, one vote’ principle: 12 III B transformation: 12 III F transactions: 12 III D taxation: 12 III E see also corporation Code Agricultural: 2 I Bankruptcy, draft of: 11 II A Commercial French, of 1807: 1 IV B, 12 I A draft of 1981: 11 I Criminal, of 1823: 1 IV B enactment: 3 III A 4 Forest: 2 I Income Tax: 19 II A Military Penal: 2 I, 20 I, 20 II D 1 (a) Napoleonic, of Commerce: 11 I see also Code Napoléon of Administrative Court Procedure: 2 I, 3 II B 6 of Administrative Procedure: 2 I, 3 IV D 1 of Banking Ethics: 11 VII A of Books and Data: 19 II A of Civil Procedure: 1 IV B, 2 I, 3 II B 6, 16 I old (1834): 1 IV B, 16 I, 16 X A of Compulsory Expropriations: 2 I of Court Organization and the Status of Judges: 3 II B 6, 16 II of Criminal Procedure: 2 I, 3 II B 6, 20 I old: 1 IV B of Greek Nationality: 2 I, 18 I A of Lawyers: 18 II H 2 of Market Regulations: 20 I of Notaries: 2 I of Private Maritime Law: 2 I, 7 VII, 13 II A 1 of Public Maritime Law: 2 I, 13 II A 2 of Traffic Regulations: 20 I on Attorneys: 2 I, 16 VI G on Civil Servants: 2 I on Customs: 2 I on Stamp Tax: 2 I, 19 IV A 2 Penal: 2 I, 20 I Second-level Local Government: 3 IV B 1

521 Towns and Villages: 3 IV B 1 see also Civil Code Code Napoléon: 1 IV B see also Code, Napoleonic of Commerce Codification: 2 II as form of legislation: 2 I in post-Byzantine times: 1 III C of ancient law: 1 II B of civil law: 1 IV B of modern Greek law: 1 IV B Collation: 10 III C Collective labor law: 14 III negotiations: 14 III A failure of: 14 III B work agreements: 14 I, 14 II E 1, 14 III A see also employment, wage, work Commercial activities: 11 I Commercial Code: see Code, Commercial, Law on Commerce Commercial IOU’s: 11 III D Commercial law characteristics of: 11 I general provisions of: 11 I Classical Greek: 1 II C Commercial money orders: 11 III C Commercial operations: 11 I Commercial paper: 11 III forms: 11 III Commercial Registry: 11 I, 12 II A (d) Common Customs Tariff: 19 IV D Common Law Classical Greek law: 1 II C Hellenistic law: 1 III A systems: 5 I Common market: 4 I ftn. 1 Community law: 2 I compliance of Greece with: 1 IV B direct applicability of: 4 II B ftn. 14, 4 II B 2, 4 II B 4 effect of: 4 II B ftn. 14, 4 II B 1 harmonization of company law with: 12 I A primary: 2 I secondary: see Regulations, Directives supremacy of: 4 II A, 4 II B 4, 4 III A 2 and Constitution: 4 II A 1, 3 I E see also European Union law Company civil: 5 III A, 6 II J administration: 6 II J 3 (c),(d) agreement: 6 II J 2 bankruptcy: 6 II J 6 dissolution: 6 II J 4

522 liquidation: 6 II J 5 partners: 6 II J 2 rights and obligations of: 6 II J 3 personality: 6 II J 2 representation: 6 II J 3 (f) holding: 13 V A limited liability: 6 II J 6 in f. see also close corporation Company law and labor matters: 12 I A harmonization with Community law: 12 I A Comparative law: 1 II C Competence (court): 16 III functional: 16 III A lack of: 16 III G subject-matter: 16 II A (d), 16 III A, 16 III B territorial: 16 III A, 16 III C Complaint by the victim waiver of: 20 II B 7 (b) Component part: 7 II B Compromise: 6 II R Concentration principle: 16 V B Conciliation: 16 VI F Condition resolutory or subsequent: 5 VI suspensive or precedent: 5 VI Confession: 16 VII D, 20 III C 4 (b) Conseil d’ administration: 12 II E d’ Etat: 3 II B 6 see also Council of State Consent of the victim: 20 II B 4 (e) see also vices of consent Consideration: 5 V F Constantine IX: 1 III B Constitutio Antoniniana: 1 III A Constitution: 3 I A and Community law: 3 I E, 4 II A 1 and international law: 3 I D and labor law: 14 I European: 3 I E of 1952: 3 I A precedence over laws: 2 I rigid: 3 I B Constitutional amendment: 1 IV A, 3 I A, 3 I B of 1986 (first): 3 I B of 2001 (second): 3 I A, 3 I B procedure: 3 I B third: 3 I B history, modern Greek law: 1 IV A see also Constitution Constitutionality, control of: 14 I see also Constitution

Index Consul: 10 IV C 2, 10 IV C 3 immunity: 17 II Consumables: 7 II D Consumer protection: 11 VII B, 11 VIII A in f. unions: 16 IV A ftn. 6 Contract administrative: see administrative contracts breach of: 6 I E 4 brokerage: 6 II G labor law: 14 II D burdening third parties: 6 I H cause: 5 V E conclusion of: 5 V E conflict of laws: 17 I B consideration: 5 V E custodianship: 6 II M formation of: 5 V E for services: 6 II E for the benefit of third parties: 6 I H for work: 6 II F informality, general principle of: 6 I C insurance: see insurance contract of assignment: 6 I J of confirmed documentary credit: 11 VII B of deposit: 6 II M, 7 II C irregular: 6 II M postnuptial: 17 I D 1 (b) prenuptial: 17 I D 1 (b) proper law of: 17 I B 1 (a) rescission: 6 I F Rome Convention: 17 I B 1 (b), 17 I G, 17 I H 1 specific: 6 II two-sided: 6 I D Contractual freedom classical Greek law: 1 II C Contra non valentem: 5 VIII B 2 Contributions: 19 I Control administrative, self-: 3 V A by independent agencies and authorities: 3 V A 2, 3 V A 6 financial: 3 V A 5 hierarchical: 3 V A 1 and advisability of conduct: 3 V A 1 of legality: 3 V A 1 judicial: 3 V C parliamentary: 3 V B see also administrative supervision, petitions Conveyance records: 7 VI Copyright: 11 V A economic right: 11 V A

Index transfer and licenses: 11 V B enforcement of: 11 V E limitations: 11 V C moral right: 11 V A see also intellectual property Corporate governance: 12 I B Corporate veil: 6 II J 4 in f., 12 II A in f. Corporation: 12 I A, 12 II annulment: 12 II A (d) approval of: 12 II A (c) as shipowner: 13 V A capital: 12 II A, 12 II C charter: 12 II A (a), 12 II B amendment: 12 II C close: see close corporation conflict of laws: 17 I F consolidation: 12 II I debt securities: 12 II C directors: 12 II E board of: 12 II E meetings: 12 II E general managing: 12 II E special managing: 12 II E dissolution: 12 II I dividends: 12 II G division: 12 II I duration: 12 II B establishment in EU member state: 17 I F financial statements: 12 II H formation of: 12 II A founders: 12 II A (a) general manager: 12 II E insurance business: 11 VIII F law reform: 12 I A liquidation: 11 II B, 12 II I local government: 3 IV B 1 maritime: see maritime corporation of lawyers: 12 I A penal provisions: 12 II J public: 3 IV C 2 regional self-governed: 3 IV B 1 registry: 12 II A (d) seat: 12 II B, 12 II D 1 ‘real seat’ doctrine: 12 I A, 16 III C in f., 17 I F shareholders meetings: 12 II D authority of: 12 II D 3 convocation: 12 II D 1 minority, protection of: 12 II F quorum: 12 II D 2 voting: 12 II D 2 shares: 12 II A (b), 12 II C bearer: 12 II A (b), 12 II C registered: 12 II A (b), 12 II C

523 subscription public: 12 II A (b) statutory auditors: 12 II H subsidiary: 12 II C, 12 II H transformation: 12 II I Council of Ministers: 3 III C 2 see also Minister, Ministries Council of State: 3 II B 1, 3 II B 6, 3 V C 1, 16 II C and principles of Community law: 4 II B 4 effect of judgment: 3 V C 2 French: 4 III A 2 see also Conseil d’ Etat judicial committee of: 3 V C 2 provisional measures: 3 V C 2 remedies: 3 V C 2 review of draft delegated legislation: 3 II B 3, 4 II B 4 see also administrative courts, application for annulment Counterclaim: 16 VI D Coup d’ Etat: 1 IV A Cour des Comptes: 3 II B 6 Court of Audit: 3 II B 1, 3 II B 6, 3 IV B 4, 3VC1 Courts access to: 16 I and application of Community law: 4 III bishop’s: 1 III C categories: 3 II B 6 civil: 3 II B 6 costs: see judicial costs criminal: 3 II B 6 deliberation in camera: 3 II B 6 district: 16 II B emergency: 3 II B 6 extraordinary: 3 II B 6 hierarchies of: 16 II A (a) lay: 1 II C of appeals: 16 II B of law: 3 II B 6 preliminary reference to ECJ: 4 III A 1 special: 3 II B 6, 3 III B see also administrative courts, Areios Pagos, competence, Council of State, criminal courts, Supreme Court, Supreme Special Court Creditor and bankruptcy: 11 II A agreement with bankrupt: 11 II B joint action of: 11 II A default of: 6 I E 5 protest by: 6 I E 3 secured: 16 XIII D status of junction: 11 II A

524 Crew: see ship, crew Criminal courts: 3 II B 6, 16 II A (a), 20 III A 1 law substantive: 20 II post-Byzantine: 1 III C preventive function of: 20 II A offense: see offenses procedure: 20 III punishment: see penal sanctions, penalty, punishment Cross-appeal: 16 VIII C Culpability: 6 I B 2 (d), 6 IV D, 6 IV E mental: 20 II B 6 (b) Culpa in contrahendo: 5 V E Cultural goods: 17 I C, 20 II E 9 see also antiquities Currency foreign: 6 I B 2 (b) national: 6 I B 2 (b) see also exchange rate Custodianship: see contract Custom as a source of law and role of: 2 II created by judicial decisions: 2 III Customary rules: 1 II A Cyprus, Turkish invasion of: 1 IV A Damage from torts: 6 IV B non-pecuniary: 6 I B 2 (d) positive: 6 I B 2 (d) Damages for delay of performance: 6 I E 3 for moral harm: 6 IV I for pecuniary injury: 6 IV I see also liability, reparations Death compensation for: 6 IV H see also succession Debt abstract promise of: 6 II S acknowledgment of: 6 II S assumption of: 6 I K described by class: 6 I E 2 matured: 11 II A suspect period, in bankruptcy: 11 II A securities: 12 II C Debtor compulsory administration of assets: 16 XIII D default of: 6 I E 3 imprisonment: 16 XIII D special assets, enforcement on: 16 XIII D

Index Decentralization: 3 IV A 2, 3 IV B 1 principle of: 3 IV B 1 Declaration of the Rights of Man: 1 IV A of will: 5 V A, 5 V C see also juridical act Defamatory rumors: 6 IV C Default: 16 VI E judgment obtained by: 16 VI E, 16 VIII B of debtor: 6 I E 3 reopening of: 16 VIII B Defendant: 20 II B 2 (a) temporary detention of: 20 II C 2 Defense excusable excess of limits of: 20 II B 6 (c) (ii) in civil proceedings: 16 VI D of another: 20 II B 4 (b) Delegated legislation, ratification of: 3 II B 3 Delegation: 3 II B 3, 3 IV B 1, 3 IV B 2, 19 I specific: 3 II B 3 statutory: 2 I Delicts: see torts Democracy: 3 II A 1, 3 II A 2 ancient Greek law: 1 II B parliamentary: 3 I B, 3 II A 1, 3 II A 4 republican: 3 I B, 3 II A 1 representative: 3 II A 3 Demosthenes: 1 II C Dépeçage: 17 I B 1 (a), 17 I B 1 (b), 17 I C Deportation: 18 II G administrative: 18 II G 1 protection against: 18 II G 2 see also aliens Deposit cash: 11 VII B public: 6 I I 2 see also bank, contract, receiver Derivatives: 12 I B see also securities Detention: 7 I, 7 III, 20 II C 2 Détournement de pouvoir: 3 IV D 2 Dictatorship Metaxas: 1 IV A military: 1 IV A, 3 I A Diplomatic immunity: 17 II Directives, Community character of: 4 II B 3 (a) direct effect of: 4 II B 3 implementation of: 4 II B 3 (a) transposition of: 4 II B 4 see also Community law Discovery: 16 VII A Disinherison: 9 VI C, 10 VI

Index Dispute private: 3 II B 6 see also administrative dispute Distinctive signs: 11 IV B 3 titles: 11 IV B 2 Dividends: 12 II G coupons: 6 II U tax law on: 19 II C Divorce: 9 III and alimony: 9 III C and maintenance obligations: 9 III C conflict of laws: 17 I D 1 (c), 17 I D 1 (d) effects of: 9 III C grounds for: 9 III A opposed: 9 III B procedure: 9 III B unopposed: 9 III B Docket: 16 VI A Doctrine acte clair: 4 III A 2 legal: 2 IV Document abstract, use in classical Greek law: 1 II C Domicile: 5 II D, 16 III C, 17 I H 4 legal: 5 II D special: 5 II D Donation: 6 II A taxes on: 19 III A see also gift Double criminality, principle of: 20 II A 3 (ii) jeopardy: 20 III C 4 (d) taxation: see taxation Dowry: 9 I, 9 II F, 19 III A Dracon: 1 II B Droit d’auteur: 11 V A Droit subjectif: 5 IV A Earnest: 6 I G 1 Ecloga: 1 III B Privata: 1 III B Electoral systems: 3 III A 1 Embezzlement: 20 II E 6 Emblem: 11 IV B 2 Emergency: 5 IV D Act: 3 II B 3 case of: 3 I C, 3 II B 3 courts: 3 II B 3 law: 3 I C non-enacted: 3 IV D 1 measures by the executive: 3 II B 1 Employees: 14 II B classes of: 14 II B

525 mass dismissals: 14 II I 1 mediation in hiring of: 14 II D responsibility for: 6 I B 8 see also employment, work Employer: 14 II C, 14 II G, 15 III A Employment: 14 II A agreement: 14 I, 14 II A, 14 II F dissolution: 14 II I compensation: 14 II I 1 ‘evidence’ rule: 14 II A fixed-term: 14 II I 2 indefinite: 14 II I 1 invalid: 14 II A dependent: 14 II A, 15 I ftn. 2 more favorable terms of: 14 I of Greek nationals on foreign-flag ships: 17 I G partial: 14 II E 1 remote work: 14 II A temporary: 14 II C tripartite relationship: 14 II C, 15 III A unit work: 14 II A see also employer, wage, work Enforceability: 16 VIII A Enforceable instruments: 16 XIII A Enforcement proceedings: 16 XIII A distribution of funds: 16 XIII D motion: 16 XIII B notice: 16 XIII B order: 16 XIII B party initiative: 16 XIII B priorities: 16 XIII D provisional: 16 VIII A Enneccerus: 5 IV A Environment, protection of: 8 I, 8 II Environmental impact assessment: 8 I Epanagoge: 1 III B Eparchikon Biblion: 1 III B Epic poetry: 1 II A Epitome Legum: 1 III B Equality: 3 I B, 3 IV D 2 and aliens: 18 II E 1 and nationality: 18 I D between men and women: 1 IV B in labor law: 14 II B, 14 II H of sexes: 1 IV B, 5 II D, 9 I, 9 II F, 17 I D of spouses: 9 II E Error, as vice of consent: 5 V C Establishment, permanent: 19 II A Estoppel agency by: 5 VII B collateral: 16 IX C direct: 16 IX C equitable: 5 IV C

526 Euro: 6 I B 2 (b) European Atomic Energy Community (EURATOM): 4 I ftn. 1 European Coal and Steel Community (ECSC): 4 I ftn. 1 European Commission of Human Rights: 3VC2 European Communities: 4 I accession of Greece to: 2 I, 3 I E European Community (EC): 4 I ftn. 1 European Company form: 12 I A see also Societas Europea European Convention for the protection of human rights: 3 V C 2 European Court of Human Rights: 3 III A 1, 12 II C European Court of Justice: 4 II, 4 III preliminary reference to: 4 III A 1 European Economic Area (EEA): 13 II A 3, 13 III C, 18 II C 1 European Economic Community (EEC): 4 I ftn. 1 European Free Trade Association: 17 III European Securities Exchange: 12 I B European Union: 4 I ftn. 1 accession of Greece to: 3 I E pillars of: 4 I ftn. 1 European Union law influence on Greek law: 1 IV B see also Community law Eurosystem: 6 I B 2 (c) ftns 3 and 6 Evidence: 16 VII administration of: 16 VII F and burden of proof: 16 VII C direct: 16 VII D documentary: 16 VII D, 16 VII E evaluation: 16 VII G means: 16 VII D order on: 16 VII A subject-matter of: 16 VII B testimonial, classical Greek law: 1 II C Exceptions: 16 VI D (a) Exchange rate: 6 I B 2 (b) see also currency Execution: 16 XIII B for direct specific performance: 16 XIII C for money claim: 16 XIII D see also attachment Executive power: 3 II B 5, 3 III C 1 and Community law: 4 II B 4 Exequatur: 16 XIII A Expenses, tax-deductible: 19 II C Expert reports: 16 VII D Expropriation: 3 II B 6, 3 IV D 7, 3 IV D 9,

Index 7 IV B, 8 II see also property, real rights Extradition: 20 III C 4 (e) Family law Byzantine: 1 III B classical Greek: 1 II C mandatory character of: 9 I post-Byzantine: 1 III C reform of: 9 I Fees: 19 I of the attorney, classical Greek era: 1 II C Felony: 20 II D 1 in f. Fertilization in vitro: 5 II B posthumous: 9 IV A Fideicommissarius: 10 II H 1, 10 II H 2 substitutio: 10 IV G Fideicommissum: 7 IV, 10 II H 2, 10 IV E, 10 IV G Filiation: 9 IV B legal effects of: 9 VI Finance public: 3 II B 4 Financial statements: 19 II C, 19 III E Finding: 7 IV B Fine: 20 II D 1 (c) Floating structure: 13 I A as means of credit: 13 IV legislative meaning of: 13 III A see also ship Force majeure: 4 III A 1 ftn. 29, 5 VIII B 2, 6 II D, 6 II N, 9 IV C ftn. 20 Foreign capital and arbitration: 16 XII A investments: 19 VII F ships as: 13 II A deeds of registration of: 13 II A 3 Forgery: 16 VII E Forty Archons: 1 II C Fora bonorum: 16 III E Forum arresti: 17 II connexitatis: 16 III D continentiae causarum: 16 III E delicti: 16 III E domicilii navis: 17 II gestae administrationis ex causis variis: 16 III E ex decreto iudicis: 16 III D hereditatis: 16 III D mandatory rules of: 17 I B 1 (b) matrimonii: 16 III E negotii: 16 III E, 17 II

Index non conveniens: 16 III G reconventionis: 16 III D rei sitae: 16 III D societatis: 16 III D Foundation: 5 III A Fraud: 20 II E 7 as a vice of consent: 5 V C Fraudulent conveyances: 6 V Freedom contractual, principle of: 6 I C of religion: 3 I B personal: 3 I B Free unions: 9 I French influence on Greek law: 1 IV B Fruits: 7 II F Fund-raising committees: 5 III A Funds, mutual: 12 I B Gaming: 6 II P Garnishment: 16 XIII D George I, King: 1 IV A Geschäftsfähigkeit: 5 II A Gift inter vivos: 10 II H 4 mortis causa: 7 VI, 10 II H 4, 17 I E see also donation Good faith: 2 III, 5 IV B, 5 V E, 5 V I, 6 I B 1, 16 V C Good morals: 5 IV B, 5 V G see also morality Government: 3 III C, 3 III C 2 acts: 3 V C 1 and confidence of Parliament: 3 III C 1 central: 3 IV A composition of: 3 III C 2 constitutional status: 3 III C 1 decentralized: 3 IV A 1 deconcentrated: 3 IV A 2 form of: 3 I B local: 3 IV A 1 and planning: 8 IV finance: 3 IV B 4 organization: 3 IV B 3 tasks: 3 IV B 2 see also administrative supervision self-government, specialized: 3 IV C Government Gazette: 2 V A, 3 III A 4, 11 IV B 5 in f., 12 II A (d), 12 II C, 12 II E, 12 II H, 12 III A, 12 III D, 18 I B (e) Greek armed forces: 18 I B (d) consciousness: 18 I A, 18 I B (e) Revolution: 1 IV A

527 Greeks ethnic: 18 I A, 18 I B (h) homogeneis: 18 I A see also aliens living abroad: 18 I B (e) Guaranty: 6 II Q, 11 III A 1, 11 VII B Guardianship of interdicted persons: 9 I, 9 VII D of minors: 9 VII B Guilt: 20 II B 5 Habitation: 7 V Hague Rules: 13 II B 1, 13 VII A, 13 VII B Harmenopoulos: 1 III B, 1 III C, 1 IV B, 9 I Harmonization of laws: 4 I Haute autorité: 3 IV A 3 Hearing: 16 VI C concentration on first: 16 V B Heat of passion: 20 II E 1 (b) Heirs acceptance of succession: 10 II A under the benefit of inventory: 10 II B classes of intestate: 10 III A community among: 10 VII B forced: 10 V A see also heirship, forced substitution of testamentary: 10 IV G unworthiness of: 10 II D see also succession Heirship, forced: 10 V Byzantine law: 1 III B legitimate portion of: 10 V B Hellenic Competition Commission (HCC): 11 VI, 19 IV A 4, 19 V B leniency program: 11 VI regulatory intervention: 11 VI see also antitrust Hellenistic law: 1 III A Hexabiblos: 1 III B, 1 III C, 1 IV B, 9 I Hierarchical control of public administration: 3VA1 see also control Hierarchical subordination: 20 III A 2 (b) Hierarchy of legal provisions: 2 I, 3 I D, 3 IV D 1 Homer: 1 II A Homicide: 20 II E 1 see also murder Human dignity, respect for: 3 I B Human rights: 3 VI abusive exercise of: 3 VI B 1 constitutional protection of: 3 VI A see also European Convention for the

528 protection of human rights, social rights Hypothecation: see Bank, mortgage ICC: 11 VII B Iliad: 1 II A Ignorance of fact: 20 II B 6 (b) (iii) of law: 20 II B 6 (c) (i) Immigration Committee: 18 II C Immovables: see things, immovables Impleader: 16 IV A Import duties: 19 IV D Import tax: 19 IV D Imprisonment: 20 II D 1 (b) Imputability: 6 I B 7, 6 IV E, 20 II B 5, 20 II B 6 Income tax: 19 II of corporations: 12 III E, 19 II C of legal persons: 19 II C of natural persons: 19 II A, 19 II B official (objective) value of: 19 II A sources of taxable income: 19 II A see also tax Indication of source: 11 IV C see also appellation of origin Indices: 1 III B Indictment Chambers: see Judicial Councils Indirect taxes: 19 IV Industrial designs: 11 IV E Industrial property: 11 IV prohibitions concerning: 11 IV A protection of: 11 IV B 4 Industrial Property Organization (OVI): 11 IV D, 11 IV E Infanticide: 20 II E 1 (e) Inheritance, agreement of: 10 II H 5 Injury bodily: 20 II E 3 personal: 6 IV H Insider trading: 12 I B Institute, Hellenic of International and Foreign Law: 17 I H 5 Institutions credit: 11 VII A financial: 11 VII A see also bank, banking Instrument authentic: 16 VII E private: 16 VII E see also evidence, documentary Insurance (private): 11 VIII aviation: 11 VIII A ftn. 13 crop: 11 VIII C 5

Index fire: 11 VIII C 2 general principles: 11 VIII B insolvency: 11 VIII C 5 liability: 11 VIII C 4 environmental: 11 VIII C 5 life: 11 VIII A motor: 11 VIII A, 11 VIII B 1, 11 VIII C 4 multiple: 11 VIII C 1 non-life: 11 VIII A over-insurance: 11 VIII C 1 reinsurance: 11 VIII A transport: 11 VIII C 3 under-insurance: 11 VIII C 1 see also insurance contract, insurance business, insurance policy, marine insurance, social insurance Insurance broker: 11 VIII B 2 business: 11 VIII F companies: 11 VIII F contract: 11 VIII A, 11 VIII A in f. conclusion: 11 VIII B 2 policy: 11 VIII B 1 life: 11 VIII D, 11 VIII E non-life: 11 VIII C 1 obligations of the insured: 11 VIII B 2 premium, payment of: 11 VIII B 4 risk: 11 VIII B 3 occurrence of: 11 VIII B 5 terms: 11 VIII B 1 Intellect, products of one‘s: 5 II E, 7 II A ftn. 3 Intellectual property: 11 V conflict of laws: 17 I C related rights: 11 V D, 11 V E see also copyright Intention: 20 II B 6 (b) (i) Interest: 6 I B 2 (b), 6 I B 2 (c) accrual: 16 VI A agreement on: 6 I B 2 (c) (i) and commercial transactions: 6 I B 2 (c) (ii) coupons: 6 II U legal: 6 I B 2 (c) (iii) moratory: 6 I B 2 (c) (ii) public: see public interest types of: 6 I B 2 (c) on interest: 6 I B 2 (c) (iii) International Accounting Standards (IAS): 19 III E International Financial Reporting Standards:19 III E ftn. 53 International law and Constitution: 3 I D generally accepted rules of: 2 I, 3 I D

Index qualification: 3 II B 6 International treaties: 2 I, 3 I D Interpretation of juridical acts: 5 V I and judicial decisions: 2 III Intervention: 16 IV A Invention: 11 IV D see also patent Investigation, types of: 20 II C 2 Investment companies: 12 I B incentives: 19 VII Isaurian dynasty: 1 III B Issue preclusion: 16 IX C see also res judicata Iuris consulti: 1 II C see also Jurisconsults Iurisdictio contentiosa: 16 XI A voluntaria: 16 XI A Ius Greco-Romanum: 1 III A novit curia: 16 VI B sanguinis: 18 I A, 18 I B (e) soli: 18 I B (a) Jailing: 20 II D 1 (b) Joinder of claims: 16 VI B of parties: 16 IV A Joint and several liability: 6 I L Judge drafter: 16 IX A general jurisdiction over Community law: 4 III B lay: 1 II C National School for: 16 II A (c) ordinary: 16 II A (b) presiding: 2 V B promotion of: 16 II D Judgment: 16 IX A citation and numbering: 3 II B 6 contents: 16 IX A declaratory: 16 IV B, 17 III dissenting opinions: 3 II B 6 drafting: 16 IX A effects: 16 IX binding: 16 IX B final: 16 VIII C, 16 IX B foreign enforcement of: 17 III recognition of: 17 III non-final: 16 VIII C, 16 IX B operative part: 16 IX A

529 reports: 16 IX A Judicial assistance: 5 V B, 9 I, 9 VII D, 17 II deprivatory: 5 V B supplemental: 5 V B committees: 3 II B 6 costs: 16 VI G Councils: 20 III C 3 decisions: 3 II B 6 as source of law: 2 III role of: 2 III guardianship: 5 V B independence: 3 II B 6, 16 II D interdiction: 5 V B officers: 16 II A (c) organization: 16 II and Constitution: 16 I principles of: 16 II A precedent: 2 III, 16 II D Areios Pagos: 2 III, 16 VIII E protection: 3 V C 1 review: 3 V self-governance: 16 II D staff: 16 II E supervision: 9 I, 9 VII D see also control, judicial Juge rapporteur: 2 V B, 16 IX A Juridical act: 5 III B 4, 5 V A abstract: 5 V F capacity to conclude: 5 V B, 17 I B 1 (a) causal: 5 V F contents: 5 V G definition of: 5 V A form of: 5 V D, 17 I B 1 (a) inter vivos: 7 VI interpretation of: 5 V I non-causal: 5 V F non-existent: 5 V H nullities of: 5 V H void: 5 V H voidable: 5 V H Juridical persons: 5 III Jurisconsults, Roman: 1 II C see also iuris consulti Jurisdiction: 16 III concurrent: 16 III E contentious or adversary: 16 XI A criminal: 20 II A 3 exclusive: 16 III D ex parte: 16 XI A, 17 III extraterritorial: 20 II A 3 international: 16 III A, 17 II in rem: 16 III E lack of: 17 II

530 non-contentious or voluntary: 16 XI A quasi-in-rem: 16 III E universal: 20 II A 3 (iv) Jurisprudence: 2 III historical school of: 1 IV B Jury: 16 II A (c), 20 III B 1 classical Greek law: 1 II C Justice of peace: 16 II B Justification: 20 II B 4 Justinian: 1 III B, 1 IV B legislation: 1 III A, 1 III B Khadi: 1 III C Kinship: 9 IV B Labor: see work Labor accidents: 13 VI B Labor cases: 16 X C and conciliation: 16 VI F Labor legislation: 14 I Land Registry and Mapping Organization: 7 VI Language demotic: 1 IV B, 9 I Hellenistic Common: 1 III A Law enacted: 2 I foreign: 16 V A proof of: 17 I H 5 ‘formal’: 3 II B 3 private: 2 I public: 2 I repeal of: 2 I Romano-Germanic family of: 2 I (un)constitutionality of: 2 III, 3 II B 6, 3 VI B 1 and erga omnes judgment on: 3 II B 6 see also legislation Law on Commerce: 2 I, 11 I, 12 IV, 13 I B projects of reform: 12 I A, 12 IV, 12 V, 12 VI Lawgivers: 1 II B Law school: 16 II E of Beirut: 1 III A of Constantinople: 1 III A, 1 III B Lease: 6 II C finance: 6 II C of living accommodation: 6 II C of professional accommodation: 6 II C rent: 6 II C usufructuary: 6 II C, 6 II D Leasing subsidy: 19 VII C Legacy: 10 II H 1, 10 IV E see also legatee

Index Legal aid: 16 VI G Legal materials: 2 V Legal periodicals: 2 IV Legal persons categories of: 5 III A charter: 5 III B 1 conflict of laws: 17 I F establishment of: 5 III B 1 liability of: 5 III B 4 see also liability of mixed character: 5 III A of private law: 5 III A of public law: 3 IV B 1, 3 IV C 1, 5 III A personality: 5 III B 2 seat: 5 III B 3 Legal philosophy: 1 II C Legal scholars, works of: 2 IV Legal systems ancient Greek: 1 II B Anglo-American: 2 III Legality, principle of: 3 IV D 1 Legatee: 10 II A, 10 II H 1 see also legacy Legislation as a source of law: 2 I de facto primacy of: 2 II delegated: see delegation, statutory ordinary: 2 I retroactive effect of: 19 I, 20 II A 2 (d) see also law Legislative acts: 3 II B 3 power: 3 II B 3 procedure: 3 III A 4 Legislature and law-making process: 2 I Legitimate expectations, principle of: 3 III A 1, 3 IV D 2 Legitimation: see child, recognition of Leo III: 1 III B Leo the Wise: 1 III B Letters of credit: 11 III C Lex causae: 17 I B 1 (a), 17 I H 3 fori: 17 I B 2, 17 I G hereditatis: 17 I E loci: 17 I B 1 (a) celebrationis: 17 I D 1 (a) contractus: 17 I E delicti commissi: 17 I B 2, 17 I G solutionis: 17 I B 1 (a), 17 I B 1 (b) mercatoria: 17 I B 1 (b) rei sitae: 17 I B 1 (b), 17 I C, 17 I E

Index Liability and obligation: 6 I dependence on fault: 6 I B 7 of innkeepers: 6 II N state: 3 IV D 8 see also state liability strict: 6 IV A, 6 IV F to pay reparations: 6 I see also operator Limitation of actions: 5 VIII A 1 statute of: 16 VI A, 17 I H 3 see also prescription Limited liability company: see close corporation, corporation, company Liquidation corporation: 11 II B special: 11 II B see also bankruptcy Lis pendens: 16 VI A Lloyd’s underwriters: 11 VIII F Loan: 6 II L, 7 II C Loi-cadre: 3 II B 3, 3 II B 4 Lottery gains tax: 19 III A Luxury tax: 19 IV B Lycurgus: 1 II B Macedonian dynasty: 1 III B Mandate: 5 III B 4, 6 II I, 9 II F, 10 IV J management without: 6 II I see also agency, representation Manpower Employment Organization (OAED): 15 IV C Manque de base légale: 16 VIII E Marine incidents: 13 VIII insurance: 11 VIII A ftn. 13, 11 VIII C 5, 11 VIII F, 13 IX see also insurance (private) Maritime corporation: 12 I A, 13 V A, 17 I F holding companies: 13 V A taxation of: 19 III C law: 13 I classical Greek: 1 II C conflict of laws: 17 I G liens: 13 IV B exercise of: 13 IV B 2 groups of claims: 13 IV B 1 loan, classical Greek: 1 II C private: 13 I B public: 13 I B relations: 13 I law applicable on: 13 I B

531 settlement of disputes: 13 I B sources: 13 II national: 13 II A international: 13 II B and Community legislation: 13 II B 2 Marriage: 9 II abroad: 17 I D 1 (a) by proxy: 9 II C Byzantine law: 1 III B celebration of: 9 II C conflict of laws: 17 I D 1 dissolution of: see divorce effect on nationality: 18 I E 1 engagement: 9 II A interruption of: 9 II G license: 9 II C nullity of: 9 II D personal effects: 9 II D requisites, requirements and impediments: 9 II B Marshals: 16 II E Matters central: 3 IV B 2 local: 3 IV B 2 Maurer, Georg Ludwig: 1 IV B, 16 I Measures of security: 20 II D 2 Media, concentration of: 12 II C see also National Council for Radio and Television Mediation, labor law: 14 III B Merchant definition of: 11 I imprisonment: 16 XIII D Merger: 6 I I 5 of banks: 11 VII A see also antitrust Mergers, control of: see close corporation, corporation Minister: 3 III C 1, 3 III C 2, 3 IV A 1 deputy: 3 III C 2, 3 IV A 1 junior: 3 III C 2 of state: 3 III C 2, 3 IV A 1 without portfolio: 3 III C 2 see also Council of Ministers Ministries, enumeration of: 3 IV A 1 Minor adoption of: 9 V B and labor law: 14 II B and loss of Greek nationality: 18 I C (e) criminal liability: 20 II B 6 (a) (i) emancipation: 9 I guardianship: 9 VII B naturalization of: 18 I B (e) placement with foster family: 9 VII C

532 protection: 9 VII Byzantine law: 1 III B see also adoption, child Miscarriage of justice: 3 II B 6 Misdemeanor: 20 II D 1 in f. Mistake of fact: 20 II B 6 (b) (iii) of law: 20 II B 6 (c) (i) Missing persons Law of 1939, German: 5 II B Modern Greek law: 1 IV Modus: 10 II H 3 Monarchy abolition of: 3 II A constitutional: 1 IV A Money laundering: 11 VII A Morality: 2 III, 16 V C, 17 I H 2 see also good morals Mortgage: 7 I, 7 VII on a ship: 7 VII, 13 IV A preferred: 17 I G simple: 13 IV A 1 on chattel: 7 VII Motherhood, surrogate: 9 IV A, 9 IV B Mount Athos: 3 IV A 2, 18 I B (g), 18 II C 2 Municipal taxes: 19 V A Murder: 20 II E 1 (a) see also homicide Mutability, principle of: 3 IV D 7 Mutual assistance in criminal matters: 20 III C 4 (e) Mythology: 1 II A Narcotic Drugs: 20 II E 8 National Council for Radio and Television: 3 III A 2, 12 II C see also media, concentration of National Health System (ESY): 15 IV C Land Registry: 7 VI Nationality: 18 I C (a), 18 I C (c) certificates of: 18 I E 2 Council on: 18 I C (a) Greek acquisition of: 17 I H 4, 18 I B by admission on Mount Athos: 18 I B (g) by birth: 18 I B (a) by ethnic Greeks: 18 I B (h) by joining the armed forces: 18 I B (d) by naturalization: 18 I B (e), 18 I B (f) by recognition of paternity: 18 I B (b) and criminal jurisdiction: 20 II A 3 (i), 20 II A 3 (ii) loss of: 17 I H 4

Index by acquisition of other: 18 I C (a) by divestiture: 18 I C (c) by renunciation: 18 I C (d), 18 I C (e) due to adoption by alien: 18 I C (b) recovery of: 18 I D intertemporal conflicts of law: 18 I A loss of: 18 I C see also plurinationality Naturalization Committee: 18 I B (e) Natural persons: 5 II birth: 5 II B death: 5 II B legal presumption of: 5 II C name, protection of: 5 II E nasciturus: 5 II B, 10 III B Necessity as an excuse: 20 II B 6 (c) (ii) justifying the act: 20 II B 4 (c) Negligence: 6 I B 7, 20 II B 6 (b) (ii) gross: 6 I B 7 slight: 6 I B 7 Negotiable instruments: 17 I B 1 (b) Negotiorum gestio: 6 II I, 7 IV, 9 II F, 17 I B 1 (a) Nomarch: 3 IV A 2, 3 IV B 1, 3 IV B 3 Nomocanones: 1 III B Nomos, nomoi: 3 IV A 2 Notarial act: 5 V D, 12 II A (e) Notary: 10 IV C 2, 10 IV C 3, protest before: 11 III A 1 Novation: 6 I I 3 Novellae: 1 III B Nullities: 5 V H ‘Nullum crimen’ principle: 20 II A 1, 20 II A 2 Object: 7 II Obligation: 6 I alternative: 6 I B 2 (f) contractual: 6 I C duty to perform: 6 I extinction of: 6 I I fulfillment of: 6 I I 1 joint and several: 6 I L non-performance of: 6 I E of support and maintenance, family law: 9 VI C release from: 6 I I 6 sources of: 6 I to provide inventory: 6 I B 2 (e) to render account: 6 I B 2 (e) Obligations: 12 II C conflict of laws: 17 I B Occupancy: 7 IV B

Index Odyssey: 1 II A OECD: 19 II D Offense accumulated: 20 II D 3 commencement of: 20 II C 1 definition of: 20 II B 1 gravity of: 20 II D 3 see also torts, unlawful acts Offer and acceptance: 5 V E Olympic Airways/Airlines: 3 IV C 2 Ombudsman: 3 V A 6 Onassis clause: 17 I D 1 (b) Operator: 13 V B limitation of liability: 13 V B Order by superior: 20 II B 4 (d) to pay or deliver: 6 II T, 11 III C in f. Organization for the Insurance of Self-employed Professionals (OAEE): 15 II A Organization of Mediation and Arbitration (OMED): 14 III B Organizations, non-governmental (NGOs): 8 IV Otto, King: 1 IV A, 1 IV B, 3 V C 1 Ownership: 7 I, 7 IV acquisition of: 7 IV A derivative: 7 IV A, 7 IV C original: 7 IV A, 7 IV B presumptions: 7 IV D protection: 7 IV D Pandectists, German: 1 IV B Paratitla: 1 III B Parental care: 9 I, 9 VIII A custody: 9 VIII A obligations towards child: 9 VI B, 9 VI C, 17 I D 2 Parliament: 3 III A acts of: 3 II B 3 on taxes: 3 II B 4, 19 I unconstitutional: 3 II B 6 and confidence on government: 3 III C 1, 3IV A 1, 3 V B and transposition of Directives: 4 II B 4 committees of: 3 III A 4 composition of: 3 III A 1 dissolution of: 3 III A 5 election of: 3 III A 1 in pleno: 3 II B 3, 3 III A 3, 3 V B members of: 3 III A 3 legal status: 3 III A 3 section: 3 II B 3, 3 III A 3

533 standing committees: 3 II B 3, 3 III A 3 Standing Orders: 3 III A 3 see also bill of Parliament Parliamentary control: see control, parliamentary democracy: 1 IV A incompatibilities: 3 III A 1 ineligibilities: 3 III A 1 republic: 1 IV A system: 3 II A 4 Partnership civil: see company, civil commercial: 6 II J 1 general: 11 IV B 1, 12 IV limited: 11 IV B 1, 12 V by shares: 12 V name: 11 IV B 1 liquidation: 11 II B post-Byzantine law of: 1 III C silent: 12 VI Party autonomy: 17 I B 1 (a) dominant position: 16 V A examination: 16 VII D oath: 16 VII D Patent: 11 IV D and licenses to third parties: 11 IV D null and void: 11 IV D requirements for granting: 11 IV D see also invention Paternal authority: 9 I Paternity, disavowal of: 9 IV B Patriarch of Constantinople: 1 III C Patriarchal Synod: 1 III C Patriarchate, Ecumenical of Constantinople: 3 II C Peira: 1 III B Penal sanctions: 20 II D see also penalty, punishment Penalty clause: 6 I G 2 criminal: 20 II D 1 custodial: 20 II D 1 (b) death: 20 II D 1 (a) pecuniary: 20 II D 1 (c) supplementary: 20 II D 1 (d) Pension: 15 IV A, 15 IV C disability: 15 IV C limits: 15 IV C occupational funds: 15 II A schemes: 4 III A 1 old-age: 15 IV C survivor’s: 4 III A 1

534 Pensioners’ Social Solidarity Allowance (EKAS): 15 IV A Peremption: 5 VIII A 3 Performance and altered circumstances: 6 I E 2 by third parties: 6 I B 4 claim to performance in kind: 6 I E 1 delay in: 6 I D, 6 I E 3 excuses for non-: 6 I D impossibility of: 6 I D, 6 I E 2 partial: 6 I B 3 place for: 6 I B 5 time for: 6 I B 6 see also action Perjury, classical Greek era: 1 II C Personae non gratae: 18 II B Personality commencement of: 5 II B free development of: 3 I B principle of, Hellenistic law: 1 III A protection of: 5 II E action for protection of: 5 II E right of: 5 II E, 7 II A right to develop: 3 VI B 1 termination of: 5 II B Personalty: 7 II B Persons Byzantine law of: 1 III B classical Greek law of: 1 II C free movement of: 4 III A 2 see also juridical persons, legal persons, natural persons, personality incapable of administering their estates: 9 VII stateless: 18 I B (e), 18 II A Petition action-like: 3 V A 3 for annulment: 3 II B 6, 3 V A 3 for declaration of absentia: 5 II C formal: 3 V A 3 see also administrative supervision, control Petty violations: 20 II D 1 in f. Pheidon: 1 II B Philolaos: 1 II B Photinopoulos, Michael: 1 III C Plan for Open Cities: 8 V C General Territorial (GTP): 8 V A, 8 V B Urban: 8 V C Master: 8 V B of Athens: 8 IV, 8 V B of Thessaloniki: 8 IV, 8 V B

Index Regional Territorial (RTP): 8 V B Special Territorial (STP): 8 V A, 8 V B Town: 8 V C types of: 8 V Planning and sustainability: 8 I constitutional framework of: 8 II delegation concerning: 3 IV B 2, 8 IV institutions: 8 IV legislation: 8 III regional: 8 I urban: 8 I Zones of Urban Development Control (ZUDC): 8 V C Plato: 1 II C Plea bargaining: 20 III C 4 (b) Pleadings: 16 VI C, 16 VI D Plebiscite: 1 IV A see also referendum Pledge: 7 I, 7 VII and bill of exchange: 11 III A 1 Plurinationality: 18 I A, 18 I C (a) see also nationality Political parties: 3 III A 2 Communist Party: 3 I E Panhellenic Socialist Movement (PASOK): 3 I B, 3 I E New Democracy: 3 I B State subsidies to: 3 III A 2 Polygamy: 18 II C 5 Possession: 7 I, 7 III action for the recovery of: 7 III for disturbance of: 7 III Possibility to comply with the law: 20 II B 6 (c) to conform to the law: 20 II B 6 (c) (ii) Post-Byzantine law: 1 III C Power of attorney: 17 I B 1 (a) procuration of: 5 VII B Prefecture: 3 IV A 2, 16 II B Premises, viewing of: 16 VII D Prescription: 5 VIII A 1, 5 VIII B 5 accrual: 5 VIII B 1 acquisitive: 5 VIII A 2, 7 IV B by non-use: 5 VIII 2 commencement of: 5 VIII B 1 interruption of: 5 VIII B 3 jus cogens rules of: 5 VIII B 4 period of: 5 VIII B 5 prolongation of: 5 VIII B 2 renunciation: 5 VIII B 4 suspension: 5 VIII B 2 see also limitation

Index Presidential decree: 3 II B 3 and Community law: 4 II B 4 President of the Republic: 3 III B election of: 3 III B powers of: 3 III A 5 Presumptions, in civil proceedings: 16 VII D Prime Minister: 3 III C 2 appointment of: 3 III A 2 disability to discharge office: 3 I B Principes directeurs du procès: 16 V Prior tempore, potior iure: 7 I, 13 IV B 2 Private insurance business: see insurance Procedural prerequisites: 16 IV A principles: 16 V Proceedings first instance: 16 VI non-contentious: 3 II B 6, 16 XI oral: 16 V C ordinary: 16 VI publicity of: 3 II B 6 special: 16 X function of: 16 X A groups of: 16 X B common features: 16 X C written: 16 V C Procheiros Nomos: 1 III B Production of things and documents: 6 II V Profit: 7 II F lost: 6 I B 2 (d) Promissory note: 11 III A, 11 III A 2 see also bill of exchange Proof: see evidence Property and rights in personam: 3 IV D 9 Byzantine law: 1 III B Classical Greek law: 1 II C conflict of laws: 17 I C expropriation of: 3 IV D 9 publicity of acts of: 7 VI industrial: see industrial property intellectual: see intellectual property law of: 7 I matrimonial: 9 II F real: 3 IV D 9 social aspect of: 3 IV D 9 taxation of: 19 III B, 19 IV C see also real rights, recordation Proportionality, principle of: 3 IV D 2, 4 III B Prorogation: 16 III F, 17 II Prosecution (criminal): 20 II C 2 Proselytism, prohibition of: 3 II C Provisional remedies: 16 X, 16 X D Public administration: 3 IV

535 control of: 3 V impartiality of: 3 IV D 2 Public Agency of Financial Investigations: 19 VI ftn. 65 Public contract: 3 IV D 7 see also administrative contracts Public Financial Service: 19 VI ftn. 65 Public interest, priority of: 3 IV D 2 Publicity of transactions, Classical Greek law: 1 II C Public office, free access to: 3 I B Public policy: 17 I H 2, 17 II Public Power Corporation: 3 IV C 2, 19 V A Public prosecutor: 16 II A (b), 20 III A 2 Public sector: 3 IV C 2 Punishment, grounds extinguishing right of: 20 II B 7 see also penal sanctions, penalty Purchase of goods: see sale Quasi-contract: 17 I B 1 (a) Quasi-possession: 7 III Real rights: 3 IV D 9, 7 I numerus clausus: 7 I security rights: 7 VII taxation: 19 IV C, 19 IV F types of: 7 I see also expropriation, property, rights Realty: 7 II B Receiver and bankruptcy: 11 II A and deposit, appointment of: 6 I I 2 see also deposit Rechtsfähigkeit: 5 II A Rechtsstaat: 3 II A 5 Recidivists: 20 II D 3, 20 II E 8 Reciprocity: 3 I D Recordation, property law: 7 VI Recours pour excès de pouvoir: 3 V C 2 Referendum: 3 II A 1 and European Constitution: 3 I E, 3 VI A 2 types under the Constitution: 3 II A 3 see also plebiscite Reformatio in peius: 3 V A 3, 20 III C 4 (c) Refoulement: 18 II B, 18 II G 3 Refugees: 18 II H 3 political: 18 I B (e), 18 II A see also asylum seekers Regions and decentralization: 3 IV A 2 and investments: 19 VII B and planning: 8 IV, 8 V B Regulations, Community: 2 I

536 direct applicability of: 4 II B 2 see also Community law Remedy, provisional: see provisional remedies and possession or detention: 7 III Rent: 6 II C, 6 II D Renvoi: 17 I H 1 Reopening of contested judgments: 16 VIII D of default: 16 VIII B Reparations: 6 I B 2 (d) for tortious liability: 6 IV I moral: 6 IV I in money, for non-pecuniary damage: 6 I B 2 (d), 6 IV I see also damage, damages Repentance: 20 II B 7 (b) Representation: 5 III B 4, 5 VII A indirect: 5 VII C legal: 5 VII A voluntary: 5 VII A see also agency, mandate Reproduction artificial: 10 III A medically-assisted: 9 I, 9 IV A Republic: 3 II A 1 see also parliamentary republic Repudium: 17 I D 1 (d) Requête civile: 16 VIII D Residence: 5 II D, 17 I H 4 Residence Card: 18 II C EU nationals: 18 II C 7 Greek nationals: 18 II C 7 Permanent: 18 II C, 18 II C 7 Residence permits: 18 II C for employment: 18 II C 1 for exceptional reasons: 18 II C 3 for family reunification: 18 II C 5 for independent economic activity: 18 II C 2 for investment purposes: 18 II C 2 indefinite: 18 II C, 18 II C 6 long-term: 18 II C to victims of human trafficking: 18 II C 4 see also visas Res judicata: 3 II B 6, 16 VIII A, 16 IX B as to non-parties: 16 IX D limits: objective: 16 IX B subjective: 16 IX B time: 16 IX B, 16 IX E see also claim, issue preclusion Res nullius: 7 IV B Responsibility

Index collective ministerial: 3 IV A 1 for employees: 6 I B 8 for one’s own conduct: 6 I B 7 Restitution: 6 I Retroactive effect of enacted law: 2 I Reward: 6 II H Rights: 5 IV abuse of: see abuse of right community of: 6 II K deactivation of: 5 IV C, 5 V H definition of: 5 IV A in personam: 3 IV D 9 in rem: 3 IV D 9 purpose, social and economic of: 5 IV B sui generis: 7 I see also real rights Right to a hearing: 3 IV D 4 Right to one’s own name: 7 II A ftn. 3 Roman empire: 1 III A Roman law: 1 III A, 1 IV B Rule of law: 3 II A 5, 3 II A 6, 3 IV D 1, 3 VI B 1 Sale: 6 II B of consumer goods: 6 II B and ftn. 12 of the estate: 10 VII C retention of title: 6 II B taxes on: 19 IV B Salvage at sea: 13 VIII C Savigny: 17 I B 2 Seamen, repatriation: 13 VI A, 13 VI B Seamen’s Pension Fund (SPF): 13 IV B 1 Securities: 12 I B see also commercial paper, shares Securities Exchange Commission: 12 I B, 12 II A Self-defense: 5 IV D, 20 II B 4 (b) Self-help: 5 IV D to protect possession: 7 III Sentencing: 20 II D 3 Separation of powers: 2 I, 3 I B, 3 II B 1 Service: 16 VI A Service of Special (Tax) Investigations: 19 VI ftn. 65 Servitudes: 7 V personal: 7 I, 7 V limited: 7 V predial: 7 I, 7 V Set-off: 6 I I 4 Shareholders ‘basic’: 12 II C see also corporation

Index Shares ‘gold’: 12 I A see also corporation Ship: 13 I A, 13 III A affreightment: 13 VII A arrest: 13 IV C 1 as foreign capital: see foreign capital as means of credit: 13 IV collision: 13 VIII A crew: 13 VI B contract of engagement of: 13 VI B list: 13 VI A, 13 VI B taxation of: 19 III C definition individual: 13 III B legislative: 13 I A, 13 III A scientific or technical: 13 I A Greek flag: 13 III B, 13 III C loss of: 13 VI B master: 13 VI A mortgage: see mortgage on a ship nationality: 13 III C public: 13 I A registry: 13 III B, 13 III C seizure against: 13 IV C 2 wreckage of: 13 VI B see also floating structure Shipowner: 13 V A liability: 17 I G limitation of: 13 V B tax on income of: 13 I B see also ship Shipwreck: 13 VII D Siège social: 19 II A ftn. 3 Simulation: 5 V C Social insurance administration of: 15 II A and State support: 15 III B as public concern: 15 I benefits: 15 IV allowances: 15 IV C characteristics of: 15 IV A prerequisites of: 15 IV B types of: 15 IV C contributions: 15 III A legal nature of: 15 III A financing of: 15 III institutions: 15 I, 15 II A reserve funds: 15 II B self-governance: 15 II B organization of: 15 II A persons entitled to: 15 IV B period: 15 IV B risk: 15 IV B

537 system: 15 I multiplicity of: 15 II A see also insurance (private) Social Insurance Organization (IKA): 14 II E 2, 15 III B Social rights: 3 I B, 3 V C 2, 14 I, 15 I Social sources: 15 III B Societas: 6 II J 2 Europea: 12 I A see also European Company form Société: 12 I A à responsabilité limitée: 12 III anonyme: 11 VIII F, 12 II en commandite: 12 V par actions: 12 V en nom collectif: 12 IV en participation: 12 VI Socrates: 1 II C Solon: 1 II B Sources of Greek law: 2 I see also legislation, custom, judicial decisions, legal scholars, international law Sovereign immunity: 17 II Sovereignty of the people: 1 IV A, 3 I B restrictions on: 3 I E Sozialstaat: 3 II A 6 Spouse, family name of: 9 II E Stamp tax: 19 IV A 2 Standing to sue: 16 IV A Stare decisis: 3 II B 6 State and Church: 3 II C liability: 3 IV D 8, 3 V C 2 from violation of Community law: 4 II B 2, 4 III B see also liability main organs of: 3 III Statutes as form of legislation: 2 I, 3 III A 4 citation and numbering: 3 III A 4 formal: 2 I substantive: 2 I of limitation: 20 II B 7 (b) Statuts: 12 II B Stock Exchange, Athens (ASE): 11 VII B, 12 I B, 12 II A (b), 12 II C Stock markets: 12 I B crash of 1999–2000: 12 I B parallel, at the ASE: 12 I B regulations: 12 I B Strike: 14 III B, 14 III D

538 Subjektives Recht: 5 IV A Successio graduum: 10 III B Succession: 10 II acceptance: 10 II A conflict of laws: 17 I E devolution of: 10 II A judicial liquidation of: 10 VII A intestate: 10 III law Byzantine: 1 III B classical: 1 II C post-Byzantine: 1 III C renunciation of: 10 II C tax: 19 III A testate: 10 IV vacant: 10 II E see also heirs Suffrage, universal male: 1 IV A Suicide, accomplicity to: 20 II E 1 (d) Supreme Court: see Areios Pagos, cassation, courts Supreme Judicial Council: 16 II D Supreme Special Court: 3 II B 6, 3 III A 1, 3VC1 and (un)constitutionality: 3 II B 6, 3 VI B 1 see also courts Synopsis Basilicorum: 1 III B Syntagmata: 1 III B Tax: 19 I audit: 19 II A, 19 VI constitutional restraints: 19 I consumption: 19 IV B deductible expenses: 19 II A definition: 19 I direct: 19 I, 19 III enforcement: 19 VI evasion: 19 VI Fiscal Offices: 19 II A, 19 VI free income: 19 II C reserves: 19 II C, 19 VII E imposition of: 3 II B 3 retroactivity: 3 II B 4 indirect: 15 III B, 19 I, 19 IV in favor of third parties: 19 V B on automatic over-value: 19 III D penalties: 19 VI progressive rate of: 19 II B registration number (AFM): 19 II C revaluation: 19 III E settlement: 19 VI shipowner’s income: 13 I B

Index see also direct taxes, import tax, income tax, taxation, double taxation, treaties for the avoidance of Taxation, double treaties for the avoidance of: 19 II A, 19 II D, 19 III D certification system: 19 II A Technical counsel: 16 VII D Telecommunications Corporation of Greece: 3 IV C 2 Term: 5 VI extinctive: see peremption for life: 20 II D 1 (b) temporary: 20 II D 1 (b) Testator: see succession Testimony: 16 VII D Theft: 20 II E 5 Theophrastus: 1 II C Things: 7 II described by class: 6 I B 2 (a) fungible: 7 II C immovables: 7 II B enforcement on: 16 XIII D located in border regions: 17 I F, 18 II H 5 movables: 7 II B out of commerce: 7 II E Third-party opposition: 16 XI C Third party under civil liability: 20 II B 2 (c) Threat, as vice of consent: 5 V C Tierce opposition: 16 XI C Timesharing: 7 IV Tortfeasors, joint: 6 IV G Torts as a source of obligation: 6 I A conflict of laws: 17 I B 2 death: 6 IV H defamatory rumors: 6 IV C high-seas, maritime: 17 I G liability from: 6 IV B for fault: 6 IV F strict: 6 IV A, 6 IV F personal injury: 6 IV H remedies: 6 IV I see also offenses, unlawful acts Torture: 20 II E 4 Towns: 3 IV B 1 Trademarks: 11 IV B 5 Administrative Committee of: 11 IV B 5 definition: 11 IV B 5 deletion: 11 IV B 5 registration: 11 IV B 5 right to exclusive use of: 11 IV B 5

Index see also trade names Trade names: 11 IV B 1 see also trademarks Trade union: 14 III, 14 III D freedom: 14 III, 14 III D General Confederation of: 14 III standing to sue: 16 X C Transaction taxes: 19 IV A, 19 IV C Tribal law: 1 II A Trusts: 7 IV, 10 II H 2, 17 I C Turkish judge: 1 III C law: 1 III C Turnover tax: 19 IV A 3 Unemployment: 15 IV C in. f Union, free: see free unions University degrees foreign, recognition of: 4 III A 2 Unjust enrichment: 6 III, 9 II A as a source of obligation: 6 I defenses against: 6 III B directness of transfer: 6 III C extent of liability: 6 III D scope: 6 III A Unlawful acts: 6 IV, 6 IV B see also offenses, torts Unseaworthiness: 13 VI B Usages business: 6 I B 1 transactional: 5 V E, 5 V I Usufruct: 7 V Usufructuary lease: see lease Utility models: 11 IV E Value-added tax (VAT): 19 IV A 1 Verwirkung: 5 IV C Vice-minister: 3 III C 1, 3 III C 2, 3 IV A 1 Vices of consent: 5 V C see also error, fraud, simulation, threat Villages: 3 IV B 1 community: 3 IV B 1 Vinculum iuris: 6 II J 2 Visas: 18 II B residence (long-term): 18 II B short-stay (Schengen): 18 II B see also residence permits Visby Rules: 13 II B 1, 13 VII B Vote by judges: 16 IX A dissent: 16 IX A of confidence: 3 II A 4 Voters: 3 III A 1

539 Wachter: 17 I B 2 Wage: 14 II F earners: 14 II A, 14 II B loan of: 14 II C minimum: 14 II F, 14 III A, 14 III B subsidy: 19 VII C see also employment, work Warehouse receipts: 11 III E Welfare state: 3 II A 6, 3 VI B 1 Wiederaufnahme des Verfahrens: 16 VIII D Will capacity to make: 10 IV A contents of: 10 IV E declaration of authenticity: 10 IV I executor of: 10 IV J extraordinary: 10 IV D 1 form of: 10 IV B holographic: 5 V D, 10 IV C 1, 17 III made at sea: 10 IV D 1, 13 VI A made during blockade: 10 IV D 3 military: 10 IV D 2 mystic (secret): 10 IV C 3 ordinary: 10 IV C public: 10 IV C 2 publication of: 10 IV I revocation of: 10 IV H validity of: 10 IV F Willful conduct: 6 I B 7 Witness: 16 VII D in classical Greek law: 1 II C Work: 14 II A advisers, private offices of: 14 II D council: 14 III C health at: 14 II E 2 injury at: 14 II E 2 inspector: 14 II E 1 leave: 14 II E 1 in f. overtime: 14 II E 1 permit: 18 II C 7 relations individual: 14 II A safety at: 14 II E 2 terms of: 14 II E flexible: 14 II J time: 14 II E 1 additional: 14 II E 1 legal: 14 II E 1 see also employment, wage York-Antwerp Rules: 13 VIII A Ypsilantis, Alexander: 1 III C Zaleukus: 1 II B Zurechnungsfähigkeit: 5 II A

Index of Greek Words

(References are made to Chapters with their subdivisions) Αγρομίσθωση: 6 II D Αγωγή: 16 VI A ακυρώσεως διαιτητικής αποφάσεως: 16 XII E αναγνώρισης της πατρότητας: 9 IV C αναγνωριστική: 16 IV B απαράδεκτη: 16 IV A αποβολής: 7 III αρνητική: 7 IV D διαπλαστική: 16 IV B διατάραξης: 7 III διεκδικητική: 7 IV D καταψηφιστική: 16 IV B περί κλήρου: 10 II G πουβλικιανή: 7 IV D Αδικαιολόγητος πλουτισμός: 6 III A Αδικοπραξία: 6 IV A Αδυναμία παροχής: 6 I E 2 Αίρεση: 5 VI αναβλητική: 5 VI διαλυτική: 5 VI Αίτηση ακυρώσεως: 3 V C 2 Αιτία: 5 V F Αιτιώδης συνάφεια: 6 IV B Ακυρότητες: 5 V H Αλλογενείς: 18 I B (e) Άμβλωση: 20 II E 2 Αμέλεια: 6 I B 7 Άμυνα: 5 IV D Αναγγελία: 16 XIII D

Αναγκαστική διαχείριση: 16 XIII D εκτέλεση: 16 XIII B επί πλοίου: 13 IV C 2 Αναγνώριση (πατρότητας) εκούσια: 9 IV C προσβολή: 9 IV C Αναδοχή ανηλίκου: 9 VII C χρέους: 6 I K Αναίρεση: 16 VIII E Ανακοπή εκτελέσεως: 16 XIII B ερημοδικίας: 16 VIII B Ανανέωση: 6 I I 3 Αναξιότητα κληρονομική: 10 II D Αναπαλλοτρίωτη κατάθεση: 11 VII B Ανατοκισμός: 6 I B 2 (c) Αναψηλάφηση: 16 VIII D Ανθρωποκτονία: 20 II E 1 Ανταλλαγή: 6 II B Αντέφεση: 16 VIII C Αντικείμενο: 7 II A Αντιπαροχή: 19 IV F ftn. 62 Αντιπροσώπευση: 5 VII A Ανώνυμα χρεόγραφα: 6 II U Ανώτατο Δικαστικό Συμβούλιο: 16 II D Ανώτατο Ειδικό Δικαστήριο: 3 II B 6 Αξιόγραφα: 11 III Αξίωση: 5 VIII A 1 Απάτη: 20 II E 7

542 Απόδειξη: 16 VII A συντηρητική: 16 VII A Αποδοχή: 5 V E Αποζημίωση: 6 I B 2 (d) Αποθεματικά: 15 II B Αποθετήριο: 11 III E Αποκλήρωση: 10 VI Αποκέντρωση: 3 IV A 2 Αποποίηση κληρονομίας: Απόσβεση ενοχών: 6 I I Απόφαση: 16 IX A διαιτητική: 16 XII E Απρόοπτη μεταβολή των συνθηκών: 6IE2 Άρειος Πάγος: 3 II B 6, 16 II B τμήματα: 16 II B Ολομέλεια: 16 II B Αρμοδιότητα: 16 III A καθ' ύλη: 16 III A κατά τόπο: 16 III A λειτουργική: 16 III A Άρνηση της βάσεως της αγωγής: 16 VI D (b) Αρραβώνας: 6 I G 1 Αρχαιότητες: 20 II E 9 Αρχή της αναλογικότητας: 3 IV D 2 της νομιμότητας: 3 IV D 1 της προστατευόμενης εμπιστοσύνης του ιδιώτη: 3 IV D 2 της χρηστής διοίκησης: 3 IV D 2 Αστικώς υπεύθυνος: 20 II B 2 (c) Ασφαλιστικά μέτρα: 16 X D Ασφαλιστικές εισφορές: 15 III A παροχές: 15 IV A συμβάσεις: 11 VIII A Ασφαλιστική επιχείρηση: 11 VIII F περίοδος: 15 IV B Ασφαλιστικοί φορείς: 15 II A Ασφαλιστικός κίνδυνος: 15 IV B Ατομική διοικητική πράξη: 3 IV D 3 Αυτοδικία: 5 IV D Αυτουργός: 20 II C 2 (a) Αυτοψία: 16 VII D Αφάνεια: 5 II C Άφεση χρέους: 6 I I 6 Αφηρημένη υπόσχεση ή αναγνώριση χρέους: 6 II S Αφορολόγητα αποθεματικά: 19 VII E Αχρησία: 5 VIII A 2 Βάρος αποδείξεως: 16 VII C

Index of Greek Words Βασανιστήρια: 20 II E 4 Βιομηχανικά σχέδια και υποδείγματα: 11 IV E Βιομηχανική ιδιοκτησία: 11 IV Γάμος: 9 II Γενικές αρχές: 5 I Γενική συνέλευση μετόχων: Γενικός διευθυντής: 12 II E Γονική επιμέλεια: 9 VIII A μέριμνα: 9 VIII A Γραμματείς (δικαστηρίων): 16 II E Γραμμάτιο εις διαταγήν: 11 III A Δάνειο: 6 II L Δανειστής: 6 I Δασμός: 19 IV D Δεδικασμένο: 16 VIII A ΔΕΗ: 3 IV C 2, 19 V A Δήλωση βουλήσεως: 5 V A, 5 V C Δημοκρατία: 3 II A 1 Δήμος: 3 IV B 1 Δημόσια διοίκηση: 3 IV A 1 κατάθεση: 6 I I 2 Οικονομική Υπηρεσία: 19 VI ftn. 65 σύμβαση: 3 IV D 7 Δημόσιες επιχειρήσεις: 3 IV C 2 Δημόσιος τομέας: 3 IV C 2 Δημόσιο συμφέρον: 3 IV D 2 Διαδικαστικές προϋποθέσεις: 16 IV A Διαδοχή εκ διαθήκης: 10 IV εξ αδιαθέτου: 10 III Διαζύγιο: 9 III συναινετικό: 9 III B Διαθήκη: 10 IV A ανάκληση: 10 IV H δημόσια: 10 IV C 2 δημοσίευση: 10 IV I ιδιόγραφη: 10 IV C 1 κήρυξη κύριας: 10 IV I μυστική: 10 IV C 3 Διαιτησία: 16 XII A μόνιμη: 16 XII C Διακριτικά γνωρίσματα: 11 IV B 3 Διακριτική ευχέρεια: 3 IV D 2 Διακριτικός τίτλος: 11 IV B 2 Διαμαρτυρικό: 11 III A 1 Διαμονή: 5 II D Διάσπαση: 12 II I Διασχηματισμός: 11 IV B 4 Διατακτικό: 16 IX A

Index of Greek Words Διαφυγόν κέρδος: 6 I B 2 (d) Διαχειριστές: 12 III D Διευθύνων σύμβουλος: 12 II E Δικαιοδοσία: 16 III A Δικαιοπραξία: 5 IV D άκυρη: 5 V H ακυρώσιμη: 5 V H ανύπαρκτη: 5 V H Δικαίωμα: 5 IV A αποδυνάμωση: 5 IV C κατάχρηση: 5 IV B Δικαστές τακτικοί: 16 II A (b) Δικαστήρια: διοικητικά: 16 II A (a) ποινικά: 16 II A (a) πολιτικά: 16 II A (a) Δικαστική αντίληψη: 9 VII D απαγόρευση: 9 VII D αρωγή: 17 II δαπάνη: 16 VI G εκκαθάριση κληρονομίας: 10 VII A επιμέλεια ξένων υποθέσεων: 9 VII E συμπαράσταση: 5 V B, 9 I, 9 VII D επικουρική: 5 V B στερητική: 5 V B Δικαστικό συμβούλιο: 20 III C 3 Δικαστικοί επιμελητές: 16 II E Διοίκηση: αλλοτρίων: 6 II I, 9 II F Διοικητική Επιτροπή Σημάτων: 11 IV B 5 Διοικητική εποπτεία: 3 IV B 5, 3 V A Διοικητική πράξη: 3 IV D 3 Διοικητική σύμβαση: 3 IV D 7 Διοικητικό συμβούλιο: 12 II E Διπλώματα ευρεσιτεχνίας: 11 IV D Δόλος: 6 I B 7 Δουλεία πραγματική: 7 V προσωπική: 7 V περιορισμένη: 7 V Δωρεά: 6 II A αιτία θανάτου: 10 II H 4 Έγγραφα: 16 VII D δημόσια: 16 VII E ιδιωτικά: 16 VII E Εγγύηση: 6 II Q Εθνικό Κτηματολόγιο: 7 VI Εθνικό Σύστημα Υγείας: 15 IV C Ειδικές διαδικασίες: 16 X A διατάξεις: 16 X B

543 δωσιδικίες: 16 III D Εικονικότητα: 5 V C Ειρηνοδικεία: 16 II B Εισαγγελείς: 16 II A (b), 20 III A 2 Εισφορές: 19 I Έκδοση: 20 III C 4 (e) Έκθεση ελέγχου: 19 VI Εκκαθάριση: 12 II I Εκκρεμοδικία: 16 VI A Έκταξη: 6 II T Εκτέλεση προσωρινή: 16 VIII A Εκτελεστής διαθήκης: 10 IV J Εκτελεστοί τίτλοι: 16 XIII A Εκτελεστότητα: 16 VIII A Ελεγκτές: 12 II H Ελεγκτικό Συνέδριο: 3 II B 6 Έλεγχος νομιμότητας: 3 V A 1 σκοπιμότητας: 3 V A 1 Ελεύθερη συλλογική διαπραγμάτευση: Ελευθερία των συμβάσεων: 6 I C Ελληνιστική Κοινή γλώσσα: 1 III A Έμβλημα: 11 IV B 2 Εμπίστευμα: 10 II H 2 Εμπορική εντολή πληρωμής: 11 III C επωνυμία: 11 IV B 1 πράξη: 11 I Έμπορος: 11 I Εμπράγματη ασφάλεια: 7 VII Εναγόμενος: 16 IV A Ενάγων: 16 IV A Ένδειξη προελεύσεως: 11 IV C Ένδικα μέσα: 16 VIII A Ενδικοφανής προσφυγή: 3 V A 3 Ενέχυρο: 7 VII πλασματικό: 7 VII Ενεχυρόγραφο: 11 III E Ενοχή: 6 I διαζευκτική: 6 I B 2 (f) Ενοχή (ποινικό δίκαιο): 20 II B 5 Ενοχικό δίκαιο: 6 I Ενστάσεις: 16 VI D (a) Εντεταλμένος σύμβουλος: 12 II E Εντολή: 6 II I, 9 II F προς εκτέλεση: 16 XIII B Ένωση προσώπων: 19 II C Εξέταση των διαδίκων: 16 VII D Εξουσιοδότηση: 17 I B 1 (a) νομοθετική: 3 II B 3 Επαγωγή: 10 II A Επίδειξη πράγματος: 6 II V Επίδομα: 15 IV C

544 Κοινωνικής Αλληλεγγύης Συνταξιούχων: 15 IV A Επιδότηση απασχόλησης: 19 VII C χρηματοδοτικής μίσθωσης: 19 VII C Επιθαλάσσια αρωγή: 13 VIII C διάσωση: 13 VIII C Επικαρπία: 7 V Επικουρική βάση της αγωγής: 16 VI B Επίμορτη αγροληψία: 6 II D Επιταγή (εκτελέσεως): 16 XIII B Επιτροπές εράνων: 5 III A Επιτροπή Ανταγωνισμού: 11 VI Επιχορήγηση: 19 VII C Εργασία: 14 II A Εργοδότης: 15 III A Ερημοδικία: 16 VI E Εταιρία: 12 I A ανώνυμη (ΑΕ): 12 I A, 12 II αστική: 5 III A, 6 II J 1 αφανής: 12 VΙ διάσπαση: 12 II I ετερόρρυθμη (EE): 12 V κατά μετοχές: 12 V λύση: 12 II I ομόρρυθμη (ΟΕ): 12 IV περιορισμένης ευθύνης (ΕΠΕ): 12 I A, 12 III Εταίροι: 12 III B Ευεργέτημα απογραφής: 10 II B πενίας: 16 VI G Ευθύνη: 6 I από πταίσμα του προστηθέντος: 6 I B 8 ξενοδόχων: 6 II N Έφεση: 16 VIII C Εφετεία: 16 II B Εφημερίδα της Κυβερνήσεως: 2 V A Εφοπλιστής: 13 V B Ζημία: 6 IV B Ζώνες Οικιστικού Ελέγχου (ZOE): 8 V C ftn. 17 Ηθικός αυτουργός: 20 II C 2 (b) Θαλάσσια ασφάλιση: 13 IX Θεμιστές: 1 II A Θετική ζημία: 6 I B 2 (d) Ιδιωτική ασφάλιση: 11 VIII αυτονομία: 6 I C

Index of Greek Words Ίδρυμα: 5 III A Ίδρυμα Κοινωνικών Ασφαλίσεων: 15 III B Ιδρυτές: 12 II A (a) Ιεραρχικός έλεγχος: 3 V A Ικανοποίηση ηθικής βλάβης: 6 IV I Ικανότητα διαδίκου: 16 IV A δικαιοπραξίας:5 V B δικαίου: 5 ΙΙ Α δικαστικής παραστάσεως: 16 IV A Ισόβια πρόσοδος: 6 II O Ισολογισμός: 12 II D 1 Ισχυρός κλονισμός: 9 III A Κάθειρξη ισόβια: 20 II D 1 (b) πρόσκαιρη: 20 II D 1 (b) Κακούργημα: 20 II D 1 in f. Κανονιστική διοικητική πράξη: 3 IV D 3 Καρπός: 7 II F Καταβολή: 6 I I 1 Καταγωγή: 9 IV B Καταδολίευση δανειστών: 6 V Καταλογισμός: 6 IV E, 20 II B 5 Καταπίστευμα: 10 II H 2 Κατάσταση ανάγκης: 5 IV D Καταστατικό: 5 III B 1, 12 II B Κατάσχεση: 16 XIII D συντηρητική πλοίου: 13 IV C 1 Κατηγορούμενος: 20 II B 2 (a) Κατοικία: 5 II D Κατοχή: 7 III Κεφάλαιο: 12 II C Κληροδόχοι: 10 II A, 10 ΙΙ Η 1 Κληρονομία αποδοχή: 10 II A αποποίηση: 10 II C σχολάζουσα: 10 II E Κληρονόμος: 10 II A υποκατάσταση: 10 IV G Κληρονομητήριο: 10 II F Κλοπή: 20 II E 5 Κοινή αβαρία: 13 VIII A Κοινοπραξία: 19 II C Κοινότητα: 3 IV B 1 Κοινωνία: 19 II C κατ' ιδανικά μέρη: 6 II K κληρονόμων: 10 VII B Κοινωνική μέριμνα: 15 I Κοινωνικοί πόροι: 15 III B Κράτηση: 20 II D 1 (b) προσωπική: 16 XIII D Κράτος

Index of Greek Words

545

δικαίου: 3 II A 5 κοινωνικό: 3 II A 6 Κτηνοληψία: 6 II D Κτήση παράγωγη: 7 IV C πρωτότυπη: 7 IV B Κυβέρνηση: 3 III C 2 Κυβερνητικές πράξεις: 3 V C 1 Κυριότητα: 7 IV Κώδικας Βιβλίων και Στοιχείων: 19 II A

Δυναμικού (ΟΑΕΔ): 15 IV C Οργανισμός Ασφάλισης Ελεύθερων Επαγγελματιών: 15 II A Οργανισμός Βιομηχανικής Ιδιοκτησίας: 11 IV D Οργανισμός Μεσολάβησης και Διαιτησίας: 14 III B ΟΤΕ: 3 IV C 2 Οφειλέτης: 6 I Όχληση: 6 I E 3

Λύση: 12 II I

Παίγνιο: 6 II P Παλιννοστούντες: 18 I B (h) Παραγραφή: 5 VIII A 1 Παρακαταθήκη: 6 II M ανώμαλη: 6 II M Παρανομία: 6 IV B Παράρτημα: 7 II B Παρέκταση: 16 III F Παρέμβαση: 16 IV A Παροχή: 6 I εφάπαξ: 15 IV C κατά γένος: 6 I B 2 (a) Περιφέρειες: 3 IV A 2 Πινάκιο: 16 VI A Πιστωτικές επιστολές: 11 III C Πιστωτικό ίδρυμα: 11 VII A Πλαίσια Χωροταξικού Σχεδιασμού και Αειφόρου Ανάπτυξης: 8 V A ftn. 13, 8 V B ftn. 15 Πλαστογραφία: 16 VII E Πλημμέλημα: 20 II D 1 in f. Πληρεξούσιο: 17 I B 1 (a) Πληρεξουσιότητα: 5 VII B Πλήρωμα: 13 VI B Πλοίαρχος: 13 VI A Πλοίο: 13 III A Πλοιοκτήτης: 13 V A Πνευματική ιδιοκτησία: 11 V Ποινής: 20 II D 1 χρηματική: 20 II D 1 (c) Ποινική ρήτρα: 6 I G 2 Πολιτικώς ενάγων: 20 II B 2 (b) Πράγμα: 7 II A ακίνητο: 7 II B αναλωτό: 7 II D αντικαταστατό: 7 II C εκτός συναλλαγής: 7 II E κινητό: 7 II B Πραγματογνωμοσύνη: 16 VII D Προεδρικό διάταγμα: 3 II B 3 Προθεσμία: 5 VI αποσβεστική: 5 VIII A 3 Προκήρυξη: 6 II H

Μάρτυρες: 16 VII D Μερίδια: 12 III B Μεσεγγύηση: 6 II M Μεσιτεία: 6 II G Μεταγραφή: 7 VI Μετατροπή: 12 II I Μετοχές: 12 II C Μέτρα ασφαλείας: 20 II D 2 Μητροπόλεις: 1 III C Μητρώον: 1 II C Μίσθωση: έργου: 6 II F πράγματος: 6 II C χρηματοδοτική: 6 II C χρονομεριστική: 7 IV Μνηστεία: 9 II A Ναρκωτικά: 20 II E 8 Ναυάγια: 13 VII D Ναυτικό δίκαιο: 13 I Ναυτολόγιο: 13 VI A Νέμηση ανιόντος: 10 VII B, 17 I E Νομάρχης: 3 IV A 2 Νομαρχιακές αυτοδιοικήσεις: 3 IV B 1 Νομαρχιακή επιτροπή: 3 IV B 3 Νομαρχιακό συμβούλιο: 3 IV B 3 Νομαρχίες: 3 IV A 2 Νομή: 7 III οιονεί: 7 III Νομικά πρόσωπα δημοσίου δικαίου: 3 IV C 1 Νομιμοποίηση: 16 IV A Νομός: 3 IV A 2, 16 II B ΟΑ: 3 IV C 2 Οίκηση: 7 V Ομογενείς: 18 Ι Α, 18 I B (e) Ομοδικία: 16 IV A Ομολογία: 16 VII D Ομολογίες: 11 III D, 12 II C Οργανισμός Απασχόλησης Εργατικού

546 Προνόμια: 16 XIII D ναυτικά: 13 IV B Προσαύξηση: 10 III B Προσβολή της πατρότητας: 9 IV B Προσεπίκληση: 16 IV A Πρόστιμο: 20 II D 1 (c) Πρόσωπα νομικά: 5 III φυσικά: 5 ΙΙ Α Προσωπικότητα: 5 ΙΙ Α Πρόταση: 5 V E Πρωτοδικεία μονομελή: 16 II B πολυμελή: 16 II B Πταίσμα: 20 II D 1 in f. του προστηθέντος: 6 I B 8 Πτώχευση: 11 II A Πώληση: 6 II B Σήματα: 11 IV B 5 Στοίχημα: 6 II P Συγγένεια: 9 IV B Συγγενικά δικαιώματα: 11 V D Σύγχυση: 6 I I 5 Συγχώνευση: 12 II I Σύμβαση: 5 V E αμφοτεροβαρής: 6 I D υπέρ τρίτου: 6 I H θαλάσσιας μεταφοράς επιβατών: 13 VII B ναύλωσης: 13 VII A υπέρ τρίτoυ: 6 I H Συμβιβασμός: 6 II R, 16 VI F Συμβούλιο της Επικρατείας: 3 II B 6 Συμφωνία περί διαιτησίας: 16 XII B Συμψηφισμός: 6 I I 4 Σύναψη συμβάσεων: 5 V E Συναλλαγματική: 11 III A Συνδικαλιστική ελευθερία: Σύνδικος: 11 II A Συνεισφορά: 10 III C Συνεργός άμεσος: 20 II C 2 (c) απλός: 20 II C 2 (d) Συνήγοροι, δίκαιο κλασικής εποχής: 1 ΙΙ C Σύνταγμα: 3 I A Συντάξεις: 15 IV C Συντρέχουσες δωσιδικίες: 16 III E Συστατικά: 7 II B Σύστημα κοινωνικής ασφάλισης: 15 I συγκεντρώσεως: 16 V B Σχέδια Πόλεως: 8 V C

Index of Greek Words Ρυθμιστικά: 8 V B ftn. 16 Σώμα Δίωξης Οικονομικού Εγκλήματος: 19 VI ftn. 65 Σωματείο: 5 III A Σωματική βλάβη: 20 II E 3 Ταμεία Επαγγελματικής Ασφάλισης: 15 II A Τεκμήρια: 16 VII D Τέλη: 19 I ακίνητης περιουσίας: 19 V A καθαριότητας και φωτισμού: 19 V A συναλλαγής: 19 IV C Τεχνικοί σύμβουλοι: 16 VII D Τοκομερίδια: 6 II U Τόκος: 6 I B 2 (c) ποσοστό εκ δικαιοπραξίας: 6 I B 2 (c) (i) ποσοστό νομίμου: 6 I B 2 (c) (iii) υπερημερίας: 6 I B 2 (c) (ii) Τραπεζική ενέγγυος πίστωση: 11 VII B επιταγή: 11 III B πληρωτέα εις λογαριασμόν: 11 III B υποθήκη: 11 VII B Τραπεζικό ενέχυρο: 11 VII B Τριτανακοπή: 16 XI C Τρόπος: 10 ΙΙ Η 3 Υπαιτιότητα: 6 IV B Υπαναχώρηση: 6 Ι F Υπεξαίρεση: 20 II E 6 Υπηρεσία Ειδικών Ελέγχων: 19 VI ftn. 65 Υπερημερία δανειστή: 6 Ι Ε 5 οφειλέτη: 6 I E 3 ΥΠΕΧΩΔΕ: 8 IV Υποδείγματα χρησιμότητας: 11 IV E Υποθέσεις εκούσιας δικαιοδοσίας: 16 XI A Υποθήκη: 7 VII προτιμώμενη επί πλοίων: 13 IV A 2 επί πλοίων: 13 IV A 1 Ύποπτη περίοδος: 11 II A Φόρος: 19 I αυτομάτου υπερτιμήματος: 19 III D δημοτικός: 19 V A εισαγωγής: 19 IV D καταναλώσεως: 19 IV B κύκλου εργασιών: 19 IV A 3 μεγάλης ακίνητης περιουσίας (ΦΜΑΠ): 19 III B μεταβιβάσεως ακινήτων: 19 IV C πολυτελείας: 19 IV B προστιθέμενης αξίας (ΦΠΑ): 19 IV A 1 συγκεντρώσεως κεφαλαίου: 19 IV A 4

Index of Greek Words υπέρ τρίτων: 19 V B Φυλάκιση: 20 II D 1 (b) Φύλλο ελέγχου: 19 VI

547 Χρησιδάνειο: 6 II C Χρησικτησία: 5 VIII A 2, 7 IV B Ωφελήματα: 7 II F

Χαρτόσημο: 19 IV A 2 Χρεωστικό ομόλογο εμπόρου: 11 III D

Introduction to Greek Law Third Revised Edition Editors: Konstantinos D. Kerameus and Phaedon John Kozyris Now in its third edition, Introduction to Greek Law remains the sole comprehensive summary of Greek law in a language other than Greek. In twenty insightful chapters, written by some of the best authorities on Greek law in Greece and in the United States, the book provides both analysis and commentary on the various aspects of theory and practice in contemporary Greek law, concentrating on comparative law aspects and on differences with corresponding concepts in the Anglo-American system and in other European systems. The third edition covers all these areas of substantive law and legal practice and more: • the Greek Constitution and its relation to international law and the European Union; • structure and distribution of state powers; • effect of EC directives; • regulatory authorities and administrative action; • judicial organization; • intellectual property; • corporations and partnerships; • labor relations; • arbitration; • commercial and maritime law; • local government; • legal persons; • contracts and torts • marriage, divorce, and filiation; • succession; • bankruptcy; • choice of law and recognition and enforcement of foreign judgments; • taxation; • investment incentives; and • criminal law and procedure. Of special value is the attention to recent revisions of civil, commercial and procedural laws, particularly in the fields of conflict of laws, procedure, property, obligations, succession, and family law. Bibliographies accompany each chapter, and useful appendices include comprehensive lists of statutes, cases, and international conventions. Introduction to Greek Law has been well-received internationally in its earlier editions, and the Third Edition, with its thorough updates, is sure to be equally welcomed by practitioners and academics alike.

ISBN 978-960-15-1837-4 (Ant. N. Sakkoulas Publishers) ISBN 978-90-411-2540-8 (Kluwer)