Bundesgerichtshof; 2022-08-24; XII ZB 268/19
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:240822BXIIZB268.19.0
Date: 2022-08-24
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82022DE0824(51)_ENG_SUMJURE
JURE summary
JURE summary
An ex-wife domiciled in the USA (hereinafter ‘the plaintiff’) who used to be married to her ex-husband currently living in Germany applied for the declaration of enforceability regarding a decision made by a court in the US federal state Oregon (hereinafter ‘the US decision’) by which the marriage of the parties to the dispute was divorced and which ordered the defendant to pay post-marital maintenance in the amount of USD 4,000 per month for the period of 4 years and afterwards for an unlimited period of time in the amount of USD 3,000.
The Amtsgericht Celle (hereinafter ‘the Court of First Instance’) as the court seised under the Hague Convention of 23 November 2007 (1) upheld the application of the plaintiff. Based on the application of the defendant, the Court of First Instance reduced the monthly payments of the maintenance to the amount of USD 2,200.
With regard to the appeal of the defendant lodged with the Oberlandesgericht Celle (hereinafter ‘the Court of Appeal’) against the declaration of enforceability by the Court of First Instance, which mostly relied on the above adjustment of the maintenance, the plaintiff modified her claim within the appellate proceedings and requested that the US decision be declared enforceable from May 2018 solely in the amount of USD 2,200.
The Court of Appeal dismissed the applications, stating that whereas the US decision could not be declared enforceable as a result of a legally final modification, it was at the same time impossible to declare it enforceable in the state of origin (Oregon) due to the lack of proof of enforceability.
The revision filed by the plaintiff with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was successful.
The Court of Appeal was incorrect in denying that preconditions for the declaration of enforceability had been met. The aim of the Hague Convention of 23 November 2007 is to simplify, speed up and ensure cost-effectiveness of cross-border assertion and enforcement of maintenance claims. The document mentioned in Article 25(1)(b) of the Hague Convention of 23 November 2007 is to be understood primarily as a means created for the benefit of the maintenance creditor in order to achieve a simplified and accelerated assertion of their claims. This principle applies to first-instance proceedings. If, however, it is possible to determine the precondition for the enforceability in contradictory appellate proceedings in a different way, such formalism, which would make the declaration of enforceability impossible solely to the fact that the creditor could not present such a certificate, would be contrary to the purpose of the Hague Convention of 23 November 2007. The Supreme Court already made a similar decision regarding a convention between Germany and the State of Israel regarding the mutual recognition and enforcement of judicial decisions (2), where it stated that a court may permit enforcement despite not having been presented with formal proof requested thereunder if the court reasonably believed that the precondition for permitting the enforcement had been met.
The Supreme Court annulled the resolution of the Court of Appeal regarding the dismissal of the auxiliary application and referred the case back for a new hearing and decision within the scope of the annulled decision to the Court of Appeal.
(1) Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance.
(2) Resolution of 12 October 2017 – IX ZB 64/14.