OLG Hamm; 2017-03-16; 11 UF 39/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2017:0316.11UF39.17.00
Date: 2017-03-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0316(52)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns an application of two plaintiffs for a declaration of enforceability of two judgments issued in 2007 and 2011 in Turkey against the defendant by the Family Court of Isparta, which was submitted to the Amtsgericht Hamm (hereinafter ‘the Court of First Instance’).
Plaintiff 1 is the defendant’s daughter and plaintiff 2 is his now divorced wife. The Turkish court ordered the defendant to pay monthly maintenance instalments for both plaintiffs pursuant to the judgement of 2007 which was served to him at his address in Turkey. However, the defendant resided in Germany at that time. He brought an action for annulment of the Turkish judgment claiming that he had no knowledge of the proceedings. However, the Turkish court dismissed his action for annulment for failure to observe a time limit and found that the defendant was aware of the existence of the judgment as his wages had already been seized on 23 October 2008 as a result of the judgment.
The Court of First Instance declared the plaintiff’s claim as admissible, upon which the defendant lodged an appeal to the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’), claiming that enforcement of the judgments was contrary to public policy because he had not been served with the application from the Turkish proceedings and was not a party to the proceedings.
The Court of Appeal considered that the Court of First Instance acted just in declaring both Turkish judgments as enforceable. Recognition or enforcement of the decision may be refused only in the cases referred to in Article 5 of the Hague Convention on the recognition and enforcement of decisions relating to maintenance obligations. There is no infringement of the German doctrine of Ordre Public by reason of the infringement of the principle of the right to be heard in this case since the defendant had the procedural opportunity to bring an action to have the Turkish judgment set aside on the ground that he had not been properly involved in the main proceedings. According to the Court of Appeal, this constitutes an 'appeal' within the meaning of Article 34(2) of the Brussels I Regulation (1), which precludes infringement of the principle of the right to be heard. Under Article 34(2) of the Brussels I Regulation, a judgment is to be declared enforceable only if the defendant in the main proceedings has actually been able to exercise his rights of defence.
The Court of Appeal therefore dismissed the defendant’s appeal against the first-instance decision.
(1) Hague Convention on the recognition and enforcement of decisions relating to maintenance obligations.
(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.