OLG Düsseldorf; 2020-06-10; 3 W 71/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2020:0610.3W71.17.00
Date: 2020-06-10
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0610(53)_ENG_SUMJURE
JURE summary
JURE summary
A company manufacturing dental implants (hereinafter ‘the plaintiff’) applied for the enforcement of an Italian judgment against a programmer and a data controller (hereinafter ‘the defendants’) of a website which claimed that the implants were contaminated with chemical residues.
The basis for this is a judgment of the Tribunale di Monza (hereinafter ‘the Court of First Instance in Milan’), by which the defendants were sentenced in absentia to a suspended prison sentence and to pay jointly and severally damages of EUR 100 000 to the plaintiff. The judgment was handed over to the defendant’s public defender, but not the defendant himself.
The Landgericht Düsseldorf (hereinafter ‘the Court of First Instance’) granted the plaintiff's request and granted the Italian judgment an enforcement clause.
The defendants appealed this decision of the Court of First Instance. They argued that they had not been properly informed about the proceedings in Italy and that their right to defence had therefore been violated.
The Oberlandesgericht Düsseldorf (hereinafter ‘the Court of Appeal’) subsequently annulled the decision of the Court of First Instance and rejected the application for recognition and enforcement of the Italian judgment. Such recognition was held to be contrary to Article 34(2) of the Brussels I Regulation (1).
The Court of Appeal found that the service of the Italian judgment to the public defender was not sufficient to give the defendants the opportunity to effectively defend themselves against the charges. Neither the letters from the Court of First Instance in Milan nor those from the Italian Public Prosecutor's Office contained sufficient information on the subject matter of the proceedings. It was not clear whether the proceedings also included civil claims for damages. What was particularly problematic was that the defendants had not been properly informed about the Italian proceedings. In particular, they had not received sufficient information that, in addition to the criminal accusation of defamation, a civil claim for damages had also been brought. In the opinion of the Court of Appeal, this constituted a significant procedural defect which precluded the recognition and enforcement of the judgment in Germany. The Court of Appeal also pointed out that the certificate submitted in the application for recognition and enforcement of the Italian judgment contained formal deficiencies. In particular, the form contained incorrect information as to whether the defendants had been served with the document initiating the proceedings.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 regarding jurisdiction and the recognition and enforcement of judgements in civil and commercial cases.