BGH; 2019-05-22; XII ZB 523/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2019:220519BXIIZB523.17.0
Date: 2019-05-22
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82019DE0522(51)_ENG_SUMJURE
JURE summary
JURE summary
This case before the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerns the declaration of enforceability of a Swiss decision, not formally duly served, which granted the trial separation of a Swiss citizen (hereinafter ‘the plaintiff’) and a German citizen (hereinafter ‘the defendant’), the custody of their son to the plaintiff and ordered the defendant to pay maintenance. At the time of the proceedings, the defendant was domiciled in Malaysia, where the application initiating the proceedings was initially not served before the public notification of the application was subsequently affected. The defendant was informed of this by email to which he replied before the decision in question was made. After the adoption of the decision, the plaintiff successfully applied to the Amtsgericht Munich for a declaration of enforceability. The defendant appealed to the Oberlandesgericht Munich (hereinafter ‘the Court of Appeal’), arguing that the notification was improperly served.
The Court of Appeal disagreed with the defendant since Article 34(2) of the new Lugano Convention (1) does not necessarily require that every notification be served formally, but only that the defendant’s rights of defence be effectively respected. These were respected. The defendant was informed of the proceedings via email in good time. Nor has any infringement of public policy under Article 34(1) of the new Lugano Convention taken place as public notification is also recognised by German law. Furthermore, the defendant did not attempt to remedy a procedural error during the initial proceedings.
The Supreme Court confirmed the opinion of the Court of Appeal and rejected the appeal. Under the new Lugano Convention, as well as under other statutory provisions, it is essential that the rights of the defendant are effectively respected. Knowledge of ongoing proceedings and a possibility to assert rights is sufficient for this purpose, although the content of Article 109(1)(1) FamFG (2) contradicts this because it is based on the special features of German law and the legislator did not take into account the development of European law regulations. The Supreme Court also agreed with the view regarding the effective respect of the rights of the defendant. The administrative offence of improper notification is, in this case, irrelevant, as acceptance via email for the acknowledgement of the initiation of proceedings is sufficient. The lack of a statement of reasons does not constitute an infringement of the rules of the doctrine of Ordre Public since German law does not require a statement of reasons for a judgment by default either.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Familienverfahrensgesetz (Family Procedure Act).