OLG Frankfurt; 2020-03-30; 26 W 9/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2020:0330.26W9.20.00
Date: 2020-03-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0330(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’) concerned an application of the plaintiff regarding the non-recognition of an Italian court decision by which the respective court declared a payment in favour of the defendant enforceable.
The defendant had applied with a competent German enforcement court for enforcement based on an Italian decision against the plaintiff under Article 53 of the Brussels I Regulation (recast) (1). Upon the argumentation made by the plaintiff, the enforcement court declared the enforcement inadmissible. Subsequently, the plaintiff applied with the Landgericht Marburg (hereinafter ‘the Court of First Instance’) to, amongst other things, refuse and not to admit the enforcement based on the Italian decision. The Court of First Instance dismissed the application.
The plaintiff filed an ‘immediate objection’ against the decision with the Court of First Instance. Among other things, the plaintiff requested that the Court of First Instance declare that the contested decisions were not enforceable under the Brussels I Regulation (recast) without prior proceedings regarding the recognition of an enforcement decision. Afterwards, the Court of First Instance referred the case to the Court of Appeal for a decision. The Court of Appeal found that the applicable regulation was the Brussels I Regulation (2) and not the Brussels I Regulation (recast) due to the fact that the proceedings had not been initiated on 10 January 2015 or later.
The Court of Appeal examined the decision of the Court of First Instance as to its merits and concluded that the objection of the plaintiff was not justified. From the wording of Article 33(2) of the Brussels I Regulation it was clear that the application could have been directed only to a positive and not negative determination of the recognisability. The Court of Appeal stated that no other interpretation was possible as it was the intention of the makers of the regulation to allow solely for positive determinations.
The Court of Appeal emphasised that a party who contested the recognition could not file an application under Article 33(2) of the Brussels I Regulation. Therefore, the Court of Appeal dismissed the appeal of the plaintiff.
(1) 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.
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.