January 2024

Decisions of the Athens Court of Appeal on the invalidity of seizure due to their execution despite the existence of an Interim Order

Decisions No. 30 and 32/2024 of the Athens Court of Appeal, based on which the suspension of the enforcement procedure with a scheduled auction of real estate with a first bid price of approximately 2.600.000 euros, were issued. The background to the case is as follows: prior to the seizure of the properties at issue, an interim order prohibiting enforcement proceedings had been issued in the context of an opposition against the order for enforcement. This interim order was violated by Servicer, which finally proceeded to seize the real estate, considering that any order or suspension order issued at the pre-execution stage can only concern the seizure of movable property and the seizure in favour of third parties.

This judgment decides for the first time a crucial issue concerning the suspension of enforcement proceedings in the context of an opposition to an ordero for enforcement , prior to the stage of seizure of immovable property. The provision of Art. 938 of the CCP refers to a prohibition of suspension in the case of the seizure of real estate and not in the case of an order for enforcement, which is a prior act to the seizure. Therefore, if the suspension order (or the interim order) does not specify whether or not the debtor's immovable property is excluded, it can only cover all possible enforcement acts (including the seizure of immovable property). This is because no interpretation of the judgment by the enforcement bodies can take place. If the creditor wishes to proceed with enforcement actions in respect of his debtor's immovable property, he should apply for the suspension decision to be revoked and, at a later stage, to carry out the seizure. 

As stated in earlier literature: 'The first consequence of a stay is the prohibition of any act of enforcement. This consequence is the logical consequence of the concept of suspension. According to the law, the prohibition of acts of execution is in principle universal. Only those acts which have been specifically authorised by the decision to suspend may therefore be carried out'.

There can be no presumptive interpretation of the interim order and the judgment. In short, if a court order violates the law (assuming, for example, that the judge made such a violation), it is not within the discretion of the parties or the enforcement bodies to apply it or not. They are, that is, bound, without more, by its content as it stands. The said judgment, merely, is voidable on the ground of misinterpretation/application of the law under CCP 559 No. 1 and therefore in the case of the interim measures judgment, a recall under CCP 697 is due in the trial court.

As the Athens Court of Appeal in its above two decisions states: "As no distinction is made in the law (4842/2021), suspension may also be granted when only the order for enforcement, i.e. the pre-execution procedure, is challenged by means of an objection, and even before the specific means of execution to be used by the enforcer has been selected. Consequently, both the application for a stay of execution made following an opposition to the order and the application for an interim order attached thereto, for as long as no attachment has been imposed, are lawful, and any interim order issued on the stay of execution prevents the continuation of the enforcement proceedings, rendering any further act of enforcement invalid...'.