Cancellation of Payment Order - The no. 775/2020 Decision of the Athens County Court - The defendant's choice to exclude the Court of Thessaloniki and to choose the Court of Athens creates a significant imbalance to the detriment of the opponent

It was formed by Justice of the Peace Nikolaos Tsagarakis, appointed by the President of the Three-Member Administrative Council of the Athens Justice of the Peace, in the presence of Secretary Dimitra Georgiou.

It sat in public in its audience on July 13, 2020 to try the case between:

' A. Of the objector: …………….

The defendant's objection: …………….

B. Of the additional intervener: a limited liability company with the name …………….

In favor of the additional intervention: a limited liability banking company with the name “……….

The defendant's additional intervention: …………….

A. The objector, with her objection dated 10-10-2017, which she legally filed with this Court and was registered in the competent books with GAK 52081/2017 and EAK 1497/2017, requested the things mentioned therein. For this objection, with the act of the Secretary dated 10-10-2017, the hearing date was set at 18-12-2017 and after legal postponements at 18-3-2020, a date on which its hearing was canceled due to the suspension of the operation of the civil courts for health reasons. The present case is returned for discussion from the court, in accordance with the provision of paragraph 2 of article 74 of law 4690/2020 (Government Gazette AI04/30-5-2020). B. The additional intervener, with her voluntary independent additional intervention dated 20-2-2020, which she legally filed with this Court and was registered in the competent books with GAK 10924/2020 and EAK 318/2020, requested the things mentioned therein. For this independent additional intervention, with the act of the Secretary dated 12-2-2020, the hearing date was set at 18-3-2020, a date on which its hearing was canceled due to the suspension of the operation of the civil courts for health reasons. The present case is returned for hearing from the court, in accordance with the provision of paragraph 2 of article 74 of law 4690/2020 (Government Gazette AI04/30-5-2020).

STUDY THE LITERATURE
THOUGHT ACCORDING TO THE LAW

With the contested objection, the discussion of which during the hearing on 18-3-2020 was canceled, due to the suspension of the operation of the courts for health reasons (virus pandemic) covid-19), and was reintroduced for discussion for the above hearing at home, in accordance with the provision of paragraph 2 of article 74 of law 4690/2020 (Government Gazette A' 104/30-5-2020), and for the reasons stated therein, it is sought to annul the payment order numbered 15569/2017 of the Athens Magistrate's Court. [……] From all the documents presented and invoked, public and private, some of which are taken into account for direct proof and others for the inference of judicial presumptions, as well as from the lessons of common experience and logic, which are taken into account ex officio (articles 336 § 4 of the Code of Civil Procedure), the following were fully proven:

The defendant banking company served the objector with a copy of the first enforceable record numbered 15569/2017 of the payment order of the Athens Magistrate's Court, which orders it to pay her the amount of 6,497.68 euros, plus interest and costs, while the beneficiary of the claim is now the company with the name ……. due to special succession. The said payment order was issued based on the credit agreement with an open joint account dated 20-5-2008 and the subsequent four additional acts thereof. Due to the overdue debts of the opponent, the defendant proceeded to an out-of-court termination of the contract, which was duly served on its counterparty, by which the defendant terminated the contract and at the same time called on the opponent to pay the entire debt, namely the amount overdue as of that date, plus interest and costs. Furthermore, with regard to the territorial jurisdiction of the Justice of the Peace upon a request for the issuance of payment orders, articles 22, 23, 25 § 2 and 33 of the Code of Civil Procedure apply. In particular, with regard to the concurrent special jurisdiction of the contract (article 33 of the Code of Civil Procedure), it is noted that disputes from rights arising from a legal transaction may be brought before the court in the district of which the place of conclusion of the legal transaction or the place where the service must be performed is located. Moreover, according to the provision of article 43 of the Code of Civil Procedure, the agreement of the parties, by which an ordinary court becomes competent for future disputes, is valid only if it is in writing and refers to a certain legal relationship, from which the disputes will arise.

However, the clause contained in a bank's General Terms and Conditions, which has as its object the assignment of jurisdiction for all disputes arising from the loan agreement concluded by a bank with its customer, to the court in whose district the bank's headquarters is located, imposes on the customer - consumer the obligation to submit to the jurisdiction of a court, which may be remote from his place of residence. This may make it difficult for the customer to appear before the court and, ultimately, discourage him and lead him to waive his defense, especially in disputes involving limited amounts and customers residing in a remote area in relation to the bank's headquarters and whom (customers) the court must, above all, take into account, since customers in this category are those who are adversely affected by such a clause, given that the costs required may lead him to the above waiver of his defense. On the contrary, such a clause allows the user of the General Terms and Conditions (bank) to concentrate in a less costly manner all the disputes concerning its activity in the courts in whose district its registered office is located or even gives it the possibility to choose completely arbitrarily the court that best suits its interests, because for example it gives it an advantage in determining the jurisdiction, but this court is not connected in any way with the dispute at hand. Such a clause extending jurisdiction, which is included in a contract between a bank and its customer without being the subject of individual negotiation, as required by art. 42 of the Code of Civil Procedure and which grants jurisdiction to certain courts that exclusively serve the interests of the bank, is considered abusive and therefore invalid under art. 2 § 6 of the law. 2251/1994, since, without responding to the reasonable interest of the supplier, it creates, despite the principles of good faith, a significant imbalance in the burden of the consumer between the contractual rights and obligations of the contracting parties (AP 1219/2001, Law, AP1030/01, EFD 109/2007, Law, EFPat 501/2004, AxNom 2005. 397, EFPeir 931/1996 EEmbD 1997. (51), EFTh 1687/2011, EEmbD 2011. 1104, EEmbD 2012/389, MPrTh 8007/2001, Arm 2002. 747 and EirPeir 961/2013, Law). This Court considers that the above imbalance to the detriment of the consumer also occurs in the conclusion of a clause of concurrent jurisdiction of more than one court, since again this agreement is not a product of negotiation, but any refusal of the consumer to conclude it, nullifies the conclusion of the contract. Moreover, in this case, the balance of the parties is disturbed in the same way, since the supplier (bank) chooses, arbitrarily and in essence circumventing the provisions on the natural judge, the court that suits his interests and fully serves his needs.

Furthermore, the opponent, with the 7th ground of opposition, claims that the contested order was issued by a locally non-competent judge (Athens Magistrates' Court), since the relevant clause extending jurisdiction is invalid as specifically stated in this ground.

This reason is legitimate, based on the above provision and must be further examined in terms of its substantive validity. From all of the above presented evidence, it emerged that by virtue of a contractual term, this Court also became co-jurisdictional for any dispute arising from this contract. However, with this term, which was not the subject of individual negotiation, as required by art. 42 of the Code of Civil Procedure, a significant imbalance is created to the detriment of the defendant between the contractual rights and obligations of the parties. This is because, on the one hand, the appellant at the time of signing the contract was (and continues to be) a permanent resident of Thessaloniki, i.e. in an area clearly remote from the seat of this Court and, consequently, the difficulty she faces in appearing before this Court is self-evident and given, capable of discouraging her and even leading her to give up her defense, in combination with the travel expenses required from one place to another. On the other hand, the choice of the defendant bank to choose the Court of Athens, i.e. of its seat, and to exclude the Court of Thessaloniki, i.e. the Court of the residence of the opponent, the place of conclusion of the contract and its additional acts and the place of performance of the service – which, based on the circumstances and the nature of the contractual relationship (Article 320 of the Civil Code), can be concluded, in the opinion of the Court, to be also Thessaloniki, since the holders of the credit products fulfill their contractual obligations in branches of the bank of their place of residence and obviously do not go to the headquarters of the central branch of the creditor bank – is an arbitrary choice, since it is made without any reasonable interest in this, given that the organization of its legal support in Thessaloniki could in no way be considered difficult, taking into account mainly the economic size of the defendant bank and its ability to has a significant legal representation in all the cities of Greece, based on the lessons of common experience and logic. Consequently, the relevant condition on the basis of which the Judge of this Court becomes locally competent to issue the disputed payment order, and who without the relevant condition would not have such competence, according to the foregoing, creates a significant imbalance to the detriment of the opponent and is contrary to § 6 of article 2 of law 2251/1994.

Therefore, in accordance with the above, the relevant reason must be accepted as substantively well-founded – and, therefore, the examination of the other reasons becomes unnecessary – and the contested opposition must be accepted. Finally, the legal costs of the opponent, following her relevant request, must be imposed in equal parts on the defendant and the additional intervener (Articles 182 § 3, 180 § 1 and 191 § 2 of the Code of Civil Procedure), as specifically provided in the operative part.

FOR THOSE REASONS

The opposition and the independent additional intervention are jointly contested by the parties.

It rejects independent additional intervention.

He accepts the objection.

Cancels payment order no. 15569/2017 of the Athens Magistrate's Court.

It orders the defendant and the independent additional intervener to pay in equal parts the legal costs of the opponent, which it sets at three hundred and forty (340) euros.

It was judged, decided and published in Athens in an extraordinary public session in its audience on 6 -7-2020.