Bayerisches Oberstes Landesgericht; 2019-08-01; Eheleute ; 1 AR 12/19
Decision by national courts in the field of European Union law — ECLI:DE:BAYOBLG:2019:0801.1AR12.19.00
Date: 2019-08-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0801(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned a court enforcement regarding maintenance claims pursued by the plaintiff (hereinafter ‘the plaintiff’) against her former husband living in Madrid (hereinafter ‘the defendant’).
The defendant was together with his mother and sister, who both had their residence in the district of the Amtsgericht Augsburg (hereinafter ‘the Court of First Instance’), a co-heir of their father’s assets who had been a German citizen with his last residence in Augsburg. The estate included a plot of land in the district of the Court of First Instance which was burdened by land charges in favour of a bank domiciled in the district of the Court of First Instance and a bank domiciled in the district of the court Amtsgericht Hameln. The banks, the mother and the sister were third-party defendants in this case.
Firstly, the plaintiff applied that the Court of First Instance issue a pledge and transfer resolution. The subject of the pledge was to be the respective claims regarding the plot of land. According to the plaintiff, the local jurisdiction of the Court of First Instance followed from Article 23 of the ZPO (1) due to the fact that the plot of land was situated in the district of the Court of First Instance. The Court of First Instance stated the Article 23 of the ZPO was not applicable, claiming that there was not only one, but three places of jurisdiction, namely Augsburg, Hameln and Madrid.
Based on the application of the plaintiff, the Bayerisches Oberstes Landesgericht (hereinafter ‘the Court of Appeal’) appointed the Court of First Instance to hold local jurisdiction.
As a matter of principle, an enforcement court was to be the district court in whose district the debtor had his/her general place of jurisdiction. As the defendant lived in Spain, Article 828(2) of the ZPO in connection with Article of the ZPO were applicable. With regard to the fact that the deceased father had his last residence, thus also habitual residence, in Augsburg, the probate court was the Court of First Instance. Therefore, the Court of First Instance had local jurisdiction under Article 828(2) second alternative of the ZPO in connection with Article 857(1) of the ZPO, as the subject-matter of the enforcement was the defendant’s share in the plot of land which was situated in the district of the Court of First Instance.
Contrary to the opinion of the plaintiff, Article 24(1) of the Brussels I Regulation (recast) (2) was not automatically applicable. Under this regulation, for proceedings regarding rights in rem to immovables, the exclusively competent courts were the courts of the Member State where the immovables were situated. However, this exclusive jurisdiction of the courts of such Member State did not include all actions regarding rights in rem to immovables. The action had to be based on a right in rem and a not a personal right to the immovables.
The Brussels I Regulation (recast) did not provide anything else regarding the international jurisdiction of the German courts for this dispute. The provision of Article 24(5) was interpreted not to be applicable to pledge and transfer orders.
(1) Zivilprozessordnung (Code of Civil Procedure).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.