OLG Düsseldorf; 2021-01-14; I-3 W 221/19, 3 W 221/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2021:0114.3W221.19.00
Date: 2021-01-14
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82021DE0114(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht Düsseldorf (hereinafter ‘the Court of Appeal’) concerned a fictitious (public) service of a document by a Swiss court to a person living in Germany (hereinafter the ‘defendant’). The applicant (hereinafter the ‘plaintiff’) filed an action for payment against the defendant in Switzerland. The defendant was to be informed of this fact by a judicial officer of the Amtsgericht Düsseldorf.
It was not possible for the judicial officer to hand over the document in person or to place it in a letterbox, as the name of the defendant was not stated on the doorbell or letterbox. Therefore, the document was deposited at the respective place designated for these purposes, and written information about this fact was placed in the letterbox and the request for an answer to the action was published on the official publication board. Afterwards, the Swiss court ordered the defendant to pay the required amount. Subsequently, the Landgericht Düsseldorf (hereinafter ‘the Court of First Instance’) decided that the decision of the Swiss court would be declared enforceable in Germany. The defendant lodged an appeal against this decision.
The Court of Appeal dismissed the appeal stating that under Article 45(1) of the new Lugano Convention (1), a declaration of enforceability might be refused or revoked only for reasons stated in Articles 34 and 35 of the new Lugano Convention. In this case, only one reason for refusal under Article 34(2) of the new Lugano Convention could be considered. This reason, however, did not apply to this case as according to the decision C‑420/07 (2), the decisive aspect was whether it had been possible for the defendant to maintain its rights of defence in practice. Having regard to the fact that the defendant gained knowledge about the court proceedings, it was possible for him to exercise his rights.
In addition, the Court of Appeal pointed out that the defendant could not rely on the ineffectiveness of the fictitious (public) service of the document limiting his defence possibilities. In cases like this, it would have been necessary to consider the respective interests of the individual parties to dispute from the perspective of the worthiness for protection of such interests, and the insufficient description on the letterbox and the doorbell could have been one of the reasons for the failure of the service under Article 181 ZPO (3) by fault of the defendant. The Court of Appeal expressed the opinion that with regard to this fact, the defendant must have been aware of the possibility that not every important document would reach him.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of 28 April 2009, Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams, C‑420/07, ECLI:EU:C:2009:271, paragraph 75.
(3) Zivilprozessordnung (Code of Civil Procedure).