DISSENTING OPINION OF JUDGE RYSSDAL

(Translation)

I regret that I am unable to concur in the opinion set out in paragraphs 32 et seq. of the judgment.

Notwithstanding that the TEE may not have been authorised to conclude the agreement concerned with Mr Beis , that agreement was made and Mr Beis performed his part of it. After the TEE had issued the payment warrant, Mr Beis made an application to the appropriate judge, who granted him an order to pay, which under Articles 623 et seq. of the Greek Code of Civil Procedure is an enforceable instrument (Article 631) and becomes final if no application is made within the prescribed time to have it set aside (Article 633 para . 2, last sentence).

Under Greek law - as indeed under the law of several other countries - a creditor is given a choice between bringing ordinary proceedings or following the simplified procedure for obtaining an ex parte order to pay. Where the law offers several courses of action, it is for the person concerned to choose the one that appears to him to be most suitable in his case.

For reasons which he does not have to account for, Mr Beis chose to apply for an order to pay. Had the debtor wished to challenge the lawfulness of that order, it could have had the order set aside and the creditor would subsequently have had to bring ordinary proceedings.

Since no application was made to have the order to pay set aside, it became final and enforceable. The fact that, unlike a judgment delivered in ordinary proceedings, an order to pay does not give rise to an estoppel per rem judicatam is not decisive.

As soon as the order to pay was made, the applicant was entitled to payme nt of the amount stated in it. When faced with the Court of Audit ’ s refusal, he was therefore under no obligation to bring ordinary civil proceedings, irrespective of whether such proceedings would have been declared inadmissible because he had no interest in bringing them.

I conclude that the applicant exhausted domestic remedies within the meaning of Article 26 of the Convention (art. 26).

[1] The cas e is numbered 44/1996/663/849. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the e ntry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar : f or practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-II), but a copy of the Commission's report is obtainable from the registry.