Brandenburgisches Oberlandesgericht; 2017-01-25; 7 W 115/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2017:0125.7W115.16.0A
Date: 2017-01-25
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0125(52)_ENG_SUMJURE
JURE summary
JURE summary
The decision considers the applicability of the Lugano Convention (1) to all or part of a dispute arising from a traffic offence.
The debtor (hereinafter ‘the defendant’) was fined for a traffic offence in Switzerland by the creditor, a district of a Swiss canton (hereinafter ‘the plaintiff’).
The plaintiff applied to the Bezirksgericht H. (hereinafter ‘the Court of First Instance in Switzerland’). The latter issued a striking out order on 16 February 2016 ordering the defendant to pay the fine and costs.
The plaintiff applied to the Landgericht Potsdam (hereinafter ‘the Court of Appeal’) for enforcement under the Lugano Convention. The 12 Civil Division of the Court of Appeal granted the application on 25 October 2016 and an enforcement order was issued on 3 November 2016.
The defendant appealed to the Brandenburgisches Oberlandesgericht 7 Zivilsenat (hereinafter ‘the Supreme Court’) against the decision of the Court of Appeal. The defendant filed a counterclaim, seeking inter alia the issuance of an enforcement order for the decision of the Court of First Instance in Switzerland.
The Supreme Court had to determine whether the decision of the Court of First Instance in Switzerland was enforceable in Germany under the Lugano Convention.
The court concluded that the Swiss decision imposing a fine for a traffic offence is a matter for criminal law, that belongs to public law, and therefore rejects the invocation of the Lugano Convention which pertains only in civil and commercial matters.
The Supreme Court states that the delimitation of the nature of the conflict depends on the material criteria and not on the nature of the court seized. It therefore follows that the sanction as well as the sentence of the Court of First Instance in Switzerland must be of public origin.
The plaintiff also invoked the application of the German-Swiss police treaty (2). The Supreme Court rejected this plea because the provisions on assistance in the enforcement of traffic offences had not yet entered into force.
For these reasons, the Supreme Court revoked the decision of the Court of Appeal and ruled in favour of the defendant. Also, the Supreme Court refused to issue an enforcement order.
(1) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.
(2) 27. April 1999 in Bern unterzeichneten Vertrages zwischen der Bundesrepublik Deutschland und der Schweizerischen Eidgenossenschaft über die grenzüberschreitende polizeiliche und justitielle Zusammenarbeit (Treaty between the Federal Republic of Germany and the Swiss Confederation on cross-border police and judicial cooperation done at Bern on the 27 April 1999).