Readers of this blog may recall an earlier post relating to the introduction of compulsory mediation in Greek TM litigation proceedings, effective as from October 2018. According to Law 4512/2018, a main action for a significant radius of civil disputes (including TM infringement matters) would not be heard, unless a formal mediation attempt had taken place first.  

This controversial development has now suffered a significant blow: According to various new sources, the Administrative Plenary of Areios Pagos, the Greek Supreme Court, has adoped an Opinion holding that compulsory mediation in civil disputes is inconsistent with the Greek Constitution. The opinion appears to be based on the premise that the law adds an additional, costly for individuals, stage (and obstacle) to citizens’ access to justice. Accordingly, the law prejudices the core of the right to judicial recourse. It is interesting to note that the Opinion is said to have been adopted on a narrow margin of 21 – 18 votes.

The Opinion is not binding upon the Greek courts or government and cannot annul the law; the Administrative Plenary of Areios Pagos is not a “constitutional court”, nor is there such court in Greece. However, in practice, it amounts to a ruling of unconstitutionality of the law. It is clear that lower courts will follow the Opinion and will hear cases, even if a mediation attempt has not taken place. It is also possible that the relevant provisions of Law 4512/2018 will be abolished, although the government may try to set reduced mediation costs in an effort to save the law. Stay tuned….