OLG Hamm; 2019-01-29; 25 W 225/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2019:0129.25W225.15.00
Date: 2019-01-29
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0129(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned the declaration of enforceability of a Spanish decision.
The parties to the dispute concluded a contract of employment which the defendant (hereinafter the ‘defendant’) terminated by a letter of notice of termination. The labour and social court no. 2 in Palma de Mallorca (hereinafter ‘the Court of First Instance in Palma de Mallorca’) upheld the action of the plaintiff (hereinafter the ‘plaintiff’) who claimed to have been dismissed unfairly. The termination was declared unjustified, and the defendant was ordered either to re-employ the plaintiff or to pay him compensation and continue to pay the remuneration.
Subsequently, the plaintiff applied for the enforcement and the issuance of a judgment that would declare the employment terminated and order the defendant to pay compensation and to continue to pay the remuneration. The defendant was summoned to the hearing by the means of service by public notice. The defendant did not attend the hearing. The Court of First Instance in Palma de Mallorca terminated the employment between the parties and ordered the defendant to pay the plaintiff the requested compensation and the outstanding wages. This decision was also served to the defendant by public notice.
The plaintiff applied in Germany for the decision to be declared enforceable. The Landgericht Paderborn (hereinafter ‘the Court of First Instance in Paderborn’) declared the decision to be enforceable with regard to the defendant’s obligation to provide compensation. This decision and the copies of the decision of the Court of First Instance in Palma de Mallorca were served to the defendant.
The defendant lodged an appeal against the decision of the Court of First Instance in Paderborn. The defendant claimed to have gained knowledge about the enforcement proceedings in Spain and the respective Spanish decision only through the proceedings regarding the declaration of enforceability, as he had not received any of the served documents before. For this reason, the defendant applied that the contested decision be annulled, the application for the declaration of enforceability of the Court of First Instance in Palma de Mallorca dismissed and the enforcement clause annulled.
The Oberlandesgerichts Hamm (hereinafter ‘the Court of Appeal’) found the appeal unjustified despite the fact that the preconditions for ordering service by public notice had not been met in the case. Pursuant to Article 34(2) of the Brussels I Regulation (1), a limitation of the right to be heard leads not to the refusal of enforceability of a later decision if the defendant had not lodged an appeal against such decision despite having the possibility to do so.
Under the laws of Spain, a defective service can be rectified through the notification becoming effective only after the receiving party gained knowledge about the substantial parts of the decision. The defendant gained this knowledge by reading the respective decision upon the service within the proceedings regarding the declaration of enforceability. The time period for lodging an appeal began upon gaining the knowledge. This time period, despite its shortness, provided the defendant reasonable time to lodge the appeal.
The appeal of the defendant was dismissed.
(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.