Procedural Posture

This document is a complementary opinion issued by the Advocate General (avocat général) to the French Cour de Cassation in proceedings concerning an appeal lodged by the Hellenic Corporation of Assets and Participations (HCAP). The appeal challenges a 15 September 2022 decision of the Paris Court of Appeal, which had upheld an earlier order authorising the attachment of HCAP's assets in France. The attachment was sought by Hellenic Shipyards SA (HSY) for the enforcement of a 2017 arbitral award rendered against the Hellenic Republic (Greece).

Core Legal Issue

The central legal question before the Cour de Cassation is whether HCAP constitutes an "emanation of the State" (émanation d'Etat) of Greece under French law. A finding of emanation would permit the piercing of HCAP's corporate veil, allowing HSY to treat HCAP's assets as belonging to Greece for the purposes of enforcing the arbitral award. The appeal contends that the Court of Appeal legally erred in its application of the criteria for determining state emanation, particularly in light of the specific circumstances of HCAP's creation and governance.

Advocate General's Analysis and Recommendation

The Advocate General's analysis focuses on the two cumulative conditions established by French jurisprudence for a finding of state emanation: (i) a lack of functional independence, and (ii) a confusion of patrimonies between the entity and the State. The opinion argues that the Court of Appeal misapplied this test.

The Advocate General emphasizes that HCAP was established pursuant to requirements imposed by European institutions under the European Stability Mechanism (ESM) as a condition for providing financial assistance to Greece. The purpose was to create an independent fund to manage Greek assets under the supervision of these European institutions. This context, the opinion suggests, is fundamentally inconsistent with the notion that HCAP is merely an alter ego controlled by the Greek state. The Advocate General finds that the lower court gave insufficient weight to the role of the European Commission and the ESM in HCAP's governance, which limits the Greek state's actual control. Furthermore, the opinion concludes that the evidence presented was insufficient to establish a genuine confusion of assets between HCAP and Greece.

Consequently, the Advocate General recommends that the Cour de Cassation quash (casser) the decision of the Paris Court of Appeal, finding merit in several branches of HCAP's appeal. The opinion concludes that the legal and factual matrix surrounding HCAP's establishment precludes its classification as a state emanation for enforcement purposes.