Law and (a new) Order

MAY-JUNE 2017|BY RAYMOND MATERA

Prominent legal experts offer proposals on improving the Greek judicial system in a Business Partners Thought Leaders feature.

Judicial Reform—Time to Attract Investment

JOHN C. KYRIAKIDES, PARTNER AT KYRIAKIDES GEORGOPOULOS LAW FIRM AND CHAIRMAN OF THE CHAMBER’S LEGISLATIVE REFORM COMMITTEE

The judicial system lies at the heart of a country’s social and economic framework and as such it constitutes an important tool in deterring or attracting investment. It is common knowledge that the Greek judicial system is suffering and is in urgent need of major reform. Never in the past has this fact been acknowledged more widely than today nor were reforms more necessary than they are now. So, unless policymakers decide to confront the pathogenies in the administration of justice, Greece will not succeed in attracting substantial funds for long-term investments that will generate growth, increase revenues and create more jobs.

Here are some proposals for consideration in civil law cases:

  • Let’s diminish the number of litigious cases that are heard. Currently, all claims filed by plaintiffs across the country will necessarily be resolved through the issuance of a judgment. This is inconceivable. We need to introduce a pre-trial stage to reduce the workload of judges. A pre-trial stage would also have other benefits, such as clarifying the main evidential issues at stake, encouraging parties to reach out-of-court settlements and discouraging unfounded motions.
  • Let’s simplify certain proceedings and abolish the need for lengthy judgments. In many instances, ordinary lengthy civil claims could be replaced by simple pre-typed statutory legal forms that the parties can fill-in; Judgments should also be shorter in their reasoning.
  • Let’s establish specialized courts dedicated solely to specific types of cases and promote the expertise of judges in certain areas; the better use of current human resources is fundamental.
  • Let’s increase the so called “trial expenses” on evidently abusive, misleading or miscalculated claims; this would deter frivolous claims.
  • Let’s introduce and implement a mechanism to monitor the performance of the courts, the progress of cases and ensure compliance with statutory deadlines for the issuance of judgments.

These measures would help the judiciary better deal with the huge backlog of cases. The obligation of plaintiffs to pay stamp duty on monetary claims was a measure in the right direction, as it deterred abusive claims. Its recent abolition was nothing other than an unjustified setback.

On another front, namely in cases involving financial crime committed against the Greek State, I suggest two important reforms. First, the time has come for Greece to adopt a genuine plea-bargain system. A system that would allow cases to be resolved without lengthy and costly trials; that would generate immediate income for the State and would remove considerable workload from the courts. Second, we must review the statutory obligation of defendants in felony offences to attend, in person, the ordinary investigation stage (taktiki anakrissi). In this globalized world, top executives of foreign multinationals are often forced to travel to Greece (under the threat of issuance of an arrest warrant) to appear in person before investigating judges simply because a frivolous, unfounded and ambiguous criminal complaint was filed against them. These executives are decision makers and influencers in boards of directors of entities sometimes worth billions in capitalization. Does anyone really believe that they will ever consider investing in Greece following such an experience?

A major reform of the justice system is a sine qua non for the progress and development of Greek society and its economy and for attracting investors. Without substantial reforms, Greece will not be in position to strengthen the sense of legal certainty to investors and complete the expected extra mile.

Reform the SA Legislative Framework

DIMITRIS DIAKOPOULOS, SENIOR PARTNER, FORTSAKIS, DIAKOPOULOS, MYLONOGIANNIS & ASSOCIATES LAW FIRM (FDMA)

In the extremely competitive international business environment of the globalized world economy, the form and mode of managing and operating private companies are evolving very rapidly, imposing respective amendments on the institutional framework governing the organization and operation thereof. This applies in Greece especially as regards the law on sociétés anonymes—being the most common form of organizing every major business and investment activity in Greece—where the key piece of legislation that governs the organization and operation thereof i.e., the Codified Law 2190/1920, is almost a century-old and it is now clear that it needs to be modernized.

The amendments of this very important law that have been effected to date were imposed mainly to incorporate EU Directives and have been fragmentary; thus, Law 2190/1920 is comprised of a “mosaic” of provisions, some of which are modern and effective and some remain anachronistic and dysfunctional. It is obvious that a radical reformation of the Codified Law 2190/1920 is required.

Indicatively the necessary reform of this law needs to address the following:

  • The effective codification of the provisions thereof so that they acquire coherence and sequential structure
  • The full removal of the provisions regarding the state supervision of SA’s
  • The modernization of the provisions regarding the management and operation of the SA’s
  • The complete adoption and utilization of modern technologies in the operation of the company’s collective management bodies
  • The liberalization of the mandatory content of the corporation’s statutes

Fortsakis, Diakopoulos, Mylonogiannis & Associates Law Firm (“FDMA”)

Fortsakis, Diakopoulos, Mylonogiannis & Associates (“FDMA”) is a leading Greek law firm providing a comprehensive range of elite legal services across the full spectrum of business, commercial and tax law and possessing high advisory expertise on landmark business transactions in Greece. With its offices located at the heart of the Athens business centre, the firm boasts today of a vibrant and multi-disciplined team of top-class practitioners, including 5 partners and 21 attorneys in total, all recognized experts in their respective fields of specialization.

Focusing on complex domestic and international transactions, our practice covers a wide spectrum of areas ranging from corporate and commercial law matters, M&A’s, privatizations, energy, TMT, investment and real estate development projects to dispute resolution in the fields of its expertise. Also FDMA is recognized as a leading expert in the fields of Greek tax and administrative law. Our hands-on approach to our clients’ affairs has earned us the reputation of one of the best legal teams in the Greek market enjoying long-standing relationships with an unmatched variety of Greek and international clients.

38 Mitropoleos str., 10563 Athens, Greece | T: (+30) 2103218900 | F: (+30) 2103218933 | E: syntagma@fdmalaw.com | W: http://www.fdmalaw.com

A More Efficient Greek Legal System

GEORGE S. KOUNOUPIS, MANAGING PARTNER, HAHALIS & KOUNOUPIS, P.C.

The justice system and legal reform are important components of any Greek recovery. I was proud to organize, with the help of AMCHAM, the first joint ABA-AMCHAM Rule of Law Conference in Athens in 2015, focusing on how the Greek legal and court system could be improved. Since that Conference, there have been positive improvements such as the amendments to the Greek Code of Civil Procedure,4335/2016, expediting trial filings and listings and encouraging mediation. What else can be done? I have four general suggestions.

The first is a specialized court for business, corporation, commercial and contract matters and disputes. At the ABA-AMCHAM Conference, Former Chief Justice Steele of the Delaware Supreme Court discussed this Court which is known as a favored global business forum. The Delaware Chancery Court operates on a “90-day rule”, i.e. – all business and commercial cases must be decided within 90 days.

The second important suggestion would be the implementation of mandatory, early, court-managed mediation—as part of the civil procedure system. In the U.S., federal civil litigation incorporates early mandatory mediation utilizing federal Magistrate Judges. This has significantly reduced backlogs.

The third suggestion is that there must be some sort of pre- trial dismissal procedure. In the U.S., Federal Procedure Rule 12 and Rule 56 weed out meritless cases and help settle and expose weak cases before trial.

The fourth and final suggestion is continuing to work toward a predictable and well-established body of corporate and commercial law and toward the development of a core of experienced commercial and business law judges.

Hahalis & Kounoupis, P.C.

Hahalis & Kounoupis, P.C. Greek Law Group was established in 1962 and has offices in Philadelphia, Edison, New Jersey, New York City, and Athens, Greece. The motto of the firm is The Confidence to Go Forward.

Hahalis & Kounoupis is a full-service U.S. and Greece law firm offering legal services specializing on matters that require ongoing, comprehensive legal advice, consultation and representation across the Atlantic.

The Managing Partner of the firm is George S. Kounoupis, J.D., admitted: PA, NJ, NY (USA) (1987), Athens (Greece) (1990), U.S. Supreme Court, U.S. Court International Trade. Mr. Kounoupis is American Bar Association Liaison for Greece and Chair, ABA, Lawyers Practicing Abroad Committee.

Firm credentials: AV Rated, Martindale Hubbell-Preeminent Law Firm; “SuperLawyers” in International Law; Best Lawyers in America; Who’s Who Legal, Top 100; National Trial Lawyers Association, Top 100; Focus Europe Magazine, Top International Lawyers; Million Dollar Advocates; Litigation Counsel of America, Fellows; American Bar Foundation, Fellows; Top Law firms in Pennsylvania, Business Counsel Magazine; American Society of Legal Advocates, Top 100 PA Lawyers.

T: 610-865-2608 | E: hklaw@ptd.net | W: www.greeklawgroup.com

Reform and Justice in Greece

GEORGE GRAVIAS, PARTNER, PAPAPOLITIS & PAPAPOLITIS LLP

Because an efficient judicial system is a key factor to attract foreign investment and for the Greek economy to grow, judicial system reform is essential. The judicial system “suffers” from long delays in delivering justice. Although the recent renewal of the Code of Procedural Law and the abundance of interventions for the acceleration of the system is positive, one cannot be optimistic, since the legal framework focuses on managing cases after they have been admitted to court, and not before. And although efficiency of justice is grounded in the amelioration of the State itself, these proposals for reform could alleviate some systemic deficiencies:

Simplification of legislation

The immediate codification and simplification of legislation, mainly procedures that concern businesses and investments

Reduction of the volume of cases and specialization of judges

Decriminalization of cases that occupy criminal courts, for personnel and funds to be transferred to Civil Justice and to severe commercial cases. Creation of departments in Courts and specialization of judges.

Alternative procedures

  • To enforce Alternative Dispute Resolution (ADR) procedures as mandatory for commercial cases
  • To create Mediation schemes for small cases in monetary terms
  • To encourage ADR clauses which will concern future disputes, while taking into account case law from UK and France, to stay the procedures in court until there has been an effort toward finding a solution

Any Legislative Reform Should Overcome Several Problems

EPAMEINONDAS STYLOPOULOS, ATTORNEY-AT-LAW (GREECE AND ENGLAND – WALES*), LL.M., ACIARB, STYLOPOULOS & ASSOCIATES

In recent years we have found ourselves amid many attempts of the Greek state to adopt a more “tidy” approach regarding the sector of justice. However, these attempts did not produce the expected outcomes. The reason for this failure is due to several facts.

More specifically, a universal reformation of Greek legislation is required. Any attempt of the Greek state to amend legislation regarding one specific issue will, by default, have adverse implications on and interactions with other pieces of legislation. The fact that legislation is changing rapidly in our country—especially with the issuance of several Ministerial Decrees —leads to certain unpredictability.

Additionally, the current technical infrastructure should be updated. It is self evident that we may not discuss the issue of legislative reform without the introduction and use of new technology, especially in many courts and public authorities far from main, urban centers.

Other facts include the number of overloaded judges and civil servants—and their continuing professional development, that should be promoted. Even the role of lawyers should be re-defined (and who should avoid advising parties from their first meeting to proceed to court proceedings).

Last, but not least, citizens should be better educated from their school years by having the opportunity to learn their fundamental rights and obligations. In this way education may assist in legislative reform, even at the stage of identifying the issues that require an amendment.

Any legislative reform should lead society, and not just follow its pace…

National Legislation, GPDR, & Healthcare

IOANNA MICHALOPOULOU, MANAGING PARTNER, MICHALOPOULOU & ASSOCIATES LAWGROUP

The digitalization of healthcare business and the move towards a more patient-focused healthcare is gathering speed. Telemedicine, online medicine purchases, personalized health systems for remote patient monitoring, integrated health information systems, electronic health records, e-prescription, e-referrals have already been established in many countries and have gained in popularity—even in Greece.

Given these developments, one would expect significant legislative upheaval. Besides, the existing Greek legal framework, first adopted in 1997, seems quite obsolete. Although the new General Data Protection Regulation, (GPDR), has taken the recent developments in the health sector into consideration and foresees special rules for medical practice and research, it leaves room for the national legislator to adopt further conditions, including limitations, regarding the processing of genetic, biometric or health-related data. It should be mentioned that the Regulation has immediate effect as of May 2018 in the Greek legal regime. Therefore, national implementation laws are not required. However, according to the relevant ministerial decision, which established the Legislative Committee for the Enforcement of Personal Data Legislation, the Committee will examine the possibility of adopting measures for the implementation of the new Regulation. This, by itself, can constitute a barrier or an opportunity for the healthcare industry.

It would be proposed that any rules adopted shall be in line with the rules of other European countries and international standards. The Greek legislature should respond to the needs of an increasingly globalized environment of healthcare actors. Fragmentation and purposeless procedures and limitations should be definitely prevented.

The Day After Reform: What Else is to be Done?

DR. E. MARGARITIS, SENIOR ASSOCIATE, DRAKOPOULOS LAW FIRM

The new Greek civil procedural regime, as implemented on 1.1.2016, has accelerated the procedural processes before first instance courts in commercial, contract and property matters. The regime provides for trials “away from court rooms,” as parties should submit pleadings and relevant evidence (e.g. documents, contracts, affidavits) in writing within a 100-day period as of the filing of the respective lawsuit. At the ordinary hearing, lawyers do not even need to attend, while judges may order witness hearings only on an auxiliary basis. The final judgment is awarded within two and a half years as of the filing of the lawsuit instead of five to seven years as per the previous regime; no postponements are awarded.

However, such regime does not apply to other disputes (e.g. tenancy issues or bankruptcy cases), which can be still unreasonably prolonged, calling, thus, for the extension and implementation of the new procedural mechanism to dispute categories that may lead to lengthy and costly resolution procedures. Severe procedural delays are, unfortunately, among the main traits of the Greek judicial system, violating the right to fair trial and repeatedly resulting in convictions against the Greek State by the European Court of Human Rights.

It is evident that a safely extended implementation of the new simplified and brief trial procedure would definitely lead to a more sustainable and effective judicial system that would radicalize the notion of effective justice in view of the rule of law and secure the interests of the parties involved.

Pensions Reform: Transforming a Tragedy to Entrepreneurial Opportunities

DR. DIMITRIOS KREMALIS LL.M, PARTNER, KREMALIS

The Greek pension system is notoriously renowned for its dominant state pillar and its high expenditures (17,4 percent of GDP or over 1/3 of the paid taxes go to pensions).

Despite several attempted “reforms” over the past years, it is common sense that the numbers simply don’t work.

Given that the pensions’ issue is related with the creditors’ evaluation of the Greek program, it is high time to consider major structural reforms, such as empowering and restructuring the second pillar, i.e. supplementary or occupational social insurance.

The European Directive 2003/41/EC, sets the necessary requirements for the promotion of occupational social insurance schemes. However, the relevant Law 3029/2002, has not kept with the expected standards, restricting its scope of application mainly to pension funds.

Law 4387/2016 introduced a unified social security institution (EFKA) and provided for the adoption of a common 20% contribution rate for old-age pensions, 6.95% for health care, 7% for auxiliary pensions and 4% for lump sum benefits, which apply to the monthly taxable income of self-employed and freelancers.

The aforementioned burden could be partially “relieved” if the government would consider the introduction of an “opting out” mechanism in favor of supplementary pension schemes that would grant e.g. auxiliary pensions, medical coverage etc. Furthermore, companies would be motivated to establish pension funds to secure the respective benefits for their employees in a clear and transparent environment, providing competitive advantages in the marketplace.

Setting the path to transform the inefficiencies of the pension system into opportunities should be our main goal, to avoid further horizontal measures.

Legal Education—For a Globalized World

MARCEL CREMER, ATTORNEY-AT-LAW, CREMER & PARTNERS

As an avid supporter of the idea that all good comes from a properly structured education, and as we cannot change the past, my proposal focuses exclusively on the future development of the legal education model.

One key reform for the legal profession is that law schools include in their syllabus classes on technology, e-commerce, AI, and finance—in English—without neglecting shipping and land law, which have been instrumental in the growth of the Greek economy in recent years and will surely continue. Then, launch a mentoring program selecting innovative market leaders to coach teams and give them true perspective.

Furthermore, internships in the legal departments of companies—ideally not only Greek—would be compulsory prior to graduation. Following that, the Bar Associations should offer soft skills’ seminars on which candidates would be tested as part of their general qualification exam.

In 5-10 years we will be reaping the rewards of a much more efficient and highly trained legal personnel, not lacking in skills, and fully able to compete with their foreign colleagues in today’s globalized economy.

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