Brandenburgisches Oberlandesgericht; 2016-07-11; 7 W 20/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2016:0711.7W20.16.0A
Date: 2016-07-11
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0711(51)_ENG_SUMJURE
JURE summary
JURE summary
A commercial bank having its registered office in Russia (hereinafter ‘the plaintiff’) sought from the Landgericht Potsdam (hereinafter ‘the Court of First Instance’) an order of coercive measures in case a Russian citizen (hereinafter ‘the defendant’) violated the ‘freezing injunctions’.
The plaintiff stated as the basis for his application two ‘freezing injunctions’ issued by the High Court of Justice London preventing the defendant, with certain exceptions, from disposing of his assets up to the amount of GBP 150 million, to trade with it or to reduce the value thereof. This restriction also applied to plots of land in Germany, the owner of which was a private limited company (GmbH). These  ‘freezing injunctions’ were limited to the assertion of claims of the plaintiff which had been confirmed by two judgements rendered by the Meschtschanski district court in Moscow.
The Court of First Instance allowed the application of the plaintiff and confirmed the defendant’s obligation to refrain from such action under penalty of an administrative fine (Ordnungsgeld).
The complaint of the defendant against this decision lodged with the Brandenburgisches  Oberlandesgericht (hereinafter ‘the Court of Appeal’) was found admissible and successful.
It was not important whether the Court of First Instance had had the international jurisdiction in the first place, as the defendant no longer had his domicile in the district of the court seised. The application itself seeking the threat of coercive measures under Article 890(2) of the ZPO (1) was admissible.
Article 39 of the Brussels I Regulation (recast) (2) provides that a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required. Accordingly, ‘freezing injunctions’ under English law can be enforceable in Germany, despite being solely a preliminary measure.
However, as the ‘freezing injunctions’ only served to the enforcement of judgment rendered in a third country (Russia), they do not constitute decisions under Article 2(a) of the Brussels I Regulation (recast). The application seeking the threat of coercive measures represented more of an unlawful circumvention of the exequatur procedure to be conducted in Germany regarding the Russian judgments under Articles 328, 722 and 723 of the ZPO.
Based on an immediate complaint of the defendant, the Court of Appeal changed the resolution of the Court of First Instance and dismissed the plaintiff’s application as inadmissible.
(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.