Bundesgerichtshof; 2022-06-02; IX ZB 60/21
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:020622BIXZB60.21.0
Date: 2022-06-02
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0602(54)_ENG_SUMJURE
JURE summary
JURE summary
A Latvian bank (hereinafter ‘the plaintiff’) applied for the enforcement of a resolution issued by the district court Riga-Stadt Vidzeme that confirmed temporary security measures regarding the assets of a former member of the supervisory board of the plaintiff, who was a German citizen (hereinafter ‘the defendant’).
The Landgericht Berlin (hereinafter ‘the Court of First Instance’), as the court seised, ordered the pension money and the claims of the defendant resulting from his shares in the company to be pledged.
The defendant filed applications to the Court of First Instance for refusal of recognition and enforcement of the First Instance’s decision and for protective measures. Such applications were dismissed by a resolution. The immediate appeal of the defendant against the resolution lodged with the Kammergericht Berlin (hereinafter ‘the Court of Appeal’) was dismissed.
The revision filed by the defendant with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was unsuccessful.
The application of the defendant for the issuance of a protective measure under Article 1115(6) ZPO (1) and Article 44(1) of the Brussels I Regulation (recast) (2) was found admissible but not substantiated.
When deciding about the application for the refusal of enforcement and if relevant grounds exist, the court may limit the enforcement proceedings solely to protective measures (Article 44(1)(a) of the Brussels I Regulation (recast), make the enforcement conditional on the provision of security determined by the court (lit. b) or to suspend, either wholly or in part, the enforcement proceedings (lit. c). The burden of demonstration that the issuance of protective measures is necessary lies with the debtor, i.e. the defendant in this case.
The defendant failed to meet the above obligation as he did not specify the loss he might incur by the pledge, nor did he present any arguments which would justify the protective measures. His case was also not supported by the fact that after the dismissal of his application regarding the issuance of a provisional measure, the plaintiff waited until the filing of the reasoning of the appeal before seeking legal protection again. Thus, the matter could hardly be found of an urgent nature.
The Supreme Court dismissed the defendant’s application to issue protective measures.
(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.