Bundesgerichtshof; 2020-04-30; IX ZB 12/19
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2020:300420BIXZB12.19.0
Date: 2020-04-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0430(51)_ENG_SUMJURE
JURE summary
JURE summary
An employee domiciled in Germany (hereinafter ‘the plaintiff’) filed an application requesting that a decision issued by a social and employment court in Palma de Mallorca against his former Spanish employer (hereinafter ‘the defendant’) be declared enforceable.
In Spain, the defendant had been ordered either to hire the plaintiff again or to pay him compensation and the salary for the respective period. Subsequently, the plaintiff applied for the enforcement of the decision. The defendant failed to appear at the hearing regarding the enforcement proceedings. The Spanish court terminated the employment and ordered the defendant to pay compensation to the plaintiff (hereinafter ‘the Spanish decision’).
The Landgericht Paderborn (hereinafter ‘the Court of First Instance’) upheld the action. The appeal against this decision was dismissed by the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’). The Court of Appeal found the Spanish decision to be a decision within the meaning of Article 32 of the Brussels I Regulation (1) and that an enforcement thereof was not contrary to Article 34(2) of the Brussels I Regulation.
The revision filed by the defendant with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was found admissible and justified.
The Supreme Court found that an obstacle regarding the enforcement existed. Articles 34(2) and 45 of the Brussels I Regulation stipulate that ‘a judgment shall not be recognised where it was given in default of appearance if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence’.
The defendant had not entered an appearance in the proceedings in Span. It was impossible for the defendant to arrange for its defence due to the late service of the application. Contrary to the opinion of the Court of Appeal, the service by public notice was ineffective. The Court of Appeal was wrong in assuming that the defendant had had a valid opportunity to arrange for its defence as the time period of only three days for filing a revision was not sufficient. The defendant had not had any knowledge of the proceedings and the Spanish decision until then. A reasonable time period for submitting a relief always depended on the concrete circumstances of the individual case.
The Supreme Court annulled the decision of the Court of Appeal and Court of First Instance and dismissed the plaintiff’s application for the issuance of the clause of enforceability.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.