OLG Frankfurt; 2020-07-17; 26 W 11/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2020:0717.26W11.20.00
Date: 2020-07-17
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0717(51)_ENG_SUMJURE
JURE summary
JURE summary
The subject matter of the dispute dealt with by the Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’) was the declaration of enforceability of a Romanian decision.
In 2010, the parties concluded a sub-supplier agreement relating to the construction of a water treatment plant in Romania whereunder the plaintiff (hereinafter ‘the plaintiff’) as sub-supplier was obliged to perform certain works.
Upon the official takeover of the work done, the defendant (hereinafter ‘the defendant’) made a complaint claiming defective performance on the part of the plaintiff and paid approximately EUR 8 500 000 and the respective VAT. The plaintiff disputed the alleged defects and succeeded in appeal proceedings in Romania, where the Romanian Court of Appeal ordered the defendant to pay EUR 571 060.15 including taxes, interest and court costs.
The plaintiff applied for the decision of the Romanian court to be declared enforceable. The Landgericht Frankfurt (hereinafter ‘the Court of First Instance’) decided in favour of the application and ordered the defendant to make a deposit of EUR 1 800 000.00 until the declaration of enforceability became finally effective. The defendant lodged an immediate appeal against this decision.
The defendant argued that the recognition of the decision would lead to the violation of the substantial legal principles of German law. The daily interest rate of 0.1 %, translating to 36.5 % a year, was contrary to German public policy. In addition, the amount should be reduced by the amount of the deposit stipulated by the Court of First Instance.
Under Article 46(3) of the Brussels I Regulation (1), the factual precondition for a deposit to be required is that the decision issued in the Member State of origin was not to be finally effective. In this case, however, the final effectiveness of the decision made by the Romanian court was evident and, therefore, no deposit could be required under Article 46(3) of the Brussels I Regulation. In the opinion of the Court of Appeal, a deposit of EUR 1 800 000.00 was not illegal as the deposit stipulated in the declaration of enforceability was evidently subject to Article 20 AVAG (2), which was applied by analogy in the case.
The Court of Appeal further stated that the decision by the Romanian court was not in evident breach of the German public policy and dismissed the appeal of the defendant.
(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) Gesetz zur Ausführung zwischenstaatlicher Verträge und zur Durchführung von Abkommen der Europäischen Union auf dem Gebiet der Anerkennung und Vollstreckung in Zivil- und Handelssachen (German Act on the Execution of Intergovernmental Recognition and Enforcement Treaties in Civil and Commercial Matters).