OLG Düsseldorf; 2016-09-08; I-3 W 316/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2016:0908.I3W316.15.00
Date: 2016-09-08
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0908(51)_ENG_SUMJURE
JURE summary
JURE summary
After a divorce between two spouses, the ex-wife's aunt (hereinafter ‘the plaintiff‘) claimed a debt from the ex-husband of her niece (hereinafter ‘the defendant’).
The plaintiff lodged a claim before the Amtsgericht A (hereinafter ‘the Court of First Instance in country A’). In the absence of the defendant, who moved to Germany, the Court of First Instance in country A appointed a lawyer to represent him during the proceedings. Its final decision ordered the defendant to pay the alleged debt and interest for late payment.
The plaintiff applied for a writ of execution for the judgment of the Court of First Instance in country A before the Landgericht Wuppertal (hereinafter ‘the Court of First Instance in Wuppertal') which granted the enforcement order.
The defendant applied for a review of the original judgment in Country A. He also appealed against the decision of the Court of First Instance in Wuppertal before the Oberlandesgericht Düsseldorf (hereinafter ‘the Court of Appeal'). The case was further considered by the Court of Appeal even though the appeal lodged in country A has not yet been concluded.
The Court of Appeal had to decide whether it could revoke the enforceable warrant issued by the Court of First Instance in Wuppertal or, failing that, stay the proceedings pending the outcome of the appeal in country A.
The Court of Appeal, relying on Article 45(1) of the Brussels I Regulation (1), dismissed the defendant's application, arguing that, acting as a court of appeal, the court may not refuse to declare a judgment given in another Member State enforceable, except on the grounds listed in Articles 34 and 35 of the Brussels I Regulation. Furthermore, the Court of Appeal concluded that the fact that the Court of First Instance in country A had appointed a lawyer to represent the defendant in his absence did not constitute an infringement of public order which falls into those exceptions. It should be noted that the defendant did not inform the authorities of his new address.
As to the request to stay the proceedings in Germany pending the decision of the appeal in Country A, the Court of Appeal held that this would only be justified by the presumption that the ordinary appeal is likely to succeed. The Court of Appeal decided in a discretionary manner that the success of the appeal in country A is unlikely. Hence, the stay of proceedings would run counter to the spirit of the Brussels I Regulation which seeks to ensure recognition of judgments between Member States.
(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.