OLG Düsseldorf; 2016-02-16; 3 W 157/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2016:0216.3W157.15.00
Date: 2016-02-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0216(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht Düsseldorf (hereinafter ‘the Court of Appeal’) concerned the declaration of enforceability of foreign decisions and the proof that the document which instituted the proceedings had been served under the existence of certificates with a different content.
On 4 May 2009, the plaintiff was awarded a court payment order by the municipal court A. in Hungary against the deceased father of the current defendant. The plaintiff tried already in 2012 to enforce this court payment order against the defendant’s father in Germany, resulting in the enforcement clause awarded by the Landgericht Mönchengladbach (hereinafter ‘the Court of First Instance’) on 9 January 2012. The father of the defendant lodged an immediate appeal against this decision, claiming that he had no knowledge of the respective court payment order proceedings as he had given up his residence in Hungary and moved abroad prior, in February 2009. The Court of Appeal annulled the decision of the Court of First Instance of 9 January 2012 and dismissed the application of the plaintiff.
After the father died, the plaintiff tried to achieve the enforcement on the basis of the same Hungarian decision of 4 May 2009 against the defendant at its heir, relying on the certificate under Articles 54 and 58 of the Brussels I Regulation issued by the municipal court A. on 21 September 2012 which stated in point 4.4 that the document which instituted the proceedings had been served on 22 May 2009. Based on the plaintiff’s application, the Court of First Instance decided to attach the enforcement clause to the decision of the municipal court A. on 27 March 2015. The defendant filed an appeal against this decision.
The proceedings in question are subject to the provisions of Brussels I Regulation. The application for the declaration of enforceability is prevented by Article 34(1)(2) of the Brussels I Regulation, which stipulates that a judgment is not to be recognized if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so.
The defendant was successful in claiming that her father as obligee did not have any opportunity to gain knowledge of the court payment order issued by the Hungarian court on 4 May 2009. According to the again corrected certificate of 21 September 2012, the father of the defendant was supposed to have been served with the document which instituted the proceedings on 22 May 2009. With any doubt, this was not in sufficient time under Article 34(1)(2) of the Brussels I Regulation, as the decision (court payment order) had already been issued on 4 May 2009.
The Court of Appeal decided to annul the challenged decision and to dismiss the application of the plaintiff from 27 March 2015 requesting the decision on the municipal court A. of 4 May 2009 to be declared enforceable.
(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.