Greece: Compulsory mediation restricts access to justice
In early 2018, a radical change to civil procedure was introduced as a result of Law 4512/2018. The change relates to compulsory mediation as an obligatory pre-trial stage for certain civil and commercial disputes. IP-related cases are included in these. Thus, before the filing of any IP-related main action lawsuit, the claimant must follow the designated mediation process, so that there is no procedural impediment to the trial. These legal provisions were scheduled to apply to any main action lawsuits filed from October 17 2018.
Criticism was voiced against these provisions. Critics noted that the mandatory nature of the mediation contradicts the fundamental right of access to justice. In relation to access to justice, objections also arose regarding compulsory mediation costs, as well as the fact that the mediator who is appointed should not necessarily be a lawyer. In light of this criticism, the Plenary of the Greek Bar Associations filed a request before the Greek Supreme Court in order to decide on the constitutionality of the compulsory mediation provisions.
In its Decision No. 34/2018, the Plenary of the Greek Supreme Court ruled by majority that the compulsory mediation provisions contradict the Greek Constitution (Article 20.1), the European Convention on Human Rights (Articles 6.1 and 13) and the Charter of Fundamental Rights of the European Union (Article 47), namely by restricting the fundamental right of access to justice.
In view of the above, and as a result of a recently filed amendment to the Law, the application of compulsory mediation has been suspended until September 16 2019 in order for the above provisions to be in accordance with the decision of the Plenary of the Greek Supreme Court. It will be interesting to see whether, in the meantime, mandatory mediation for IP-related cases is eliminated.
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