BGH; 2023-08-30; VII ZB 45/21
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:300823BVIIZB45.21.0
Date: 2023-08-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0830(51)_ENG_SUMJURE
JURE summary
JURE summary
In 2013, the creditor (hereinafter ‘the plaintiff’) obtained a court order before a Spanish tribunal by which the debtor (hereinafter ‘the defendant’) was obliged to pay a specific amount.
In 2015, the plaintiff applied for a declaration of enforceability of this court order in Germany under the Brussels I Regulation (1). The declaration of enforceability was rejected in the last instance by a decision of the Bundesgerichtshof (hereinafter ‘the Supreme Court’) in 2020 due to an obstacle to recognition pursuant to Article 34(2) and Article 45 of the Brussels I Regulation. The Supreme Court found that the Spanish court's order had not been effectively served to the defendant. Thus, he had no effective legal remedy under Spanish law. The Spanish courts were found to be in breach of public policy as they violated the plaintiff’s right to a fair hearing and a fair trial pursuant to Article 6(1) of the ECHR (2) and Article 47 of the Charter (3).
Subsequently, the plaintiff applied to the Labour and Social Court in Spain for confirmation of the court order of 2013 as a European Enforcement Order pursuant to Regulation (EC) No 805/2004 (4). The plaintiff, represented by a new entity, was then granted the enforcement order in Spain, and was seeking enforcement in Germany based on this.
The defendant filed for a ‘reminder pursuant to Article 766 of the ZPO (5)’ against the enforcement announced by the bailiff. In addition to the complaint of the parties' lack of identity, he asserted that the enforcement was prevented by the Supreme Court's 2020 decision.
The request was first dismissed by the Court of Appeal. The defendant was appealing and pursuing the same reminder before the Supreme Court. He asserted an objection based on Article 21 of Regulation (EC) No 805/2004, which interpretation is key to the present decision. This article allows refusal of enforcement only if an earlier judgment between the same parties and on the same cause of action exists.
The Supreme Court denied the appeal, considering that these requirements were not met. The Supreme Court emphasised that the procedures and requirements of the Brussels I Regulation and Regulation (EC) No 805/2004 are distinct. Thus, the creditor maintains the freedom to choose between both, as stated in Article 27 of Regulation (EC) No 805/2004. Additionally, it noted that procedural rights violations in the state of origin do not automatically prevent enforcement in Germany, as Regulation (EC) No 805/2004 entrusts compliance oversight to the originating state's courts, as per Article 13 et seq. of Regulation (EC) No 805/2004.
The Supreme Court held that its 2020 decision does not constitute an earlier decision between the same parties on the same subject matter of the dispute within the meaning of Article 21 of Regulation (EC) No 805/2004. The Supreme Court notes that the earlier decision is a declaration of enforceability of the Spanish judgment in Germany in accordance with the provisions of the Brussels I Regulation. The current decision, however, is a question of confirmation as a European enforcement order in Spain. Both proceedings require different prerequisites and responsibilities. Therefore, no conflicting decision is incompatible with the certification as a European enforcement order as per Regulation (EC) No 805/2004.
Furthermore, the Supreme Court held that the Court of Appeal did not err in law in affirming the identity of the parties as per the requirement set by Article 20(1)(a) of Regulation (EC) No 805/2004.
Referral of the Court of Justice of the European Union was deemed unnecessary since the interpretation of Article 21 of Regulation (EC) No 805/2004 is well-established in the Court’s case law.
(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
(2)  European Convention on Human Rights.
(3) Charter of Fundamental Rights of the European Union.
(4) Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims.
(5) Zivilprozessordnung (Code of Civil Procedure).