Bundesgerichtshof; 2017-04-06; IX ZB 19/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:060417BIXZB19.16.0
Date: 2017-04-06
Subject matter: Lugano Convention
Origin: Germany

82017DE0406(51)_ENG_SUMJURE
JURE summary
JURE summary
A doctor working in Switzerland (hereinafter the 'applicant') applied for a declaration of enforceability of two judgments in Germany based on which a natural person from Germany (hereinafter the 'respondent') was obliged to pay him legal fees. The application was based on the judgment of the Bezirksgerichts Meilen (hereinafter ‘District Court of Meilen’; Switzerland) and the judgment of the Obergerichts des Kantons Zürich (hereinafter ‘Supreme Court of the Canton of Zurich’).
The court of first instance (Landgericht München, District Court Munich) declared the judgments enforceable. The complaint filed by the respondent before the court of appeal (Oberlandesgericht München, hereinafter ‘Higher Regional Court Munich’) was unsuccessful.
Through the appeal before the Bundesgerichtshof (Federal Court of Justice, hereinafter 'BGH') the respondent sought the annulment of the declaration of enforceability and refusal of the claim. He alleged a violation of public policy in procedural law (considering a negative rule of evidence in Swiss judgments) that is not allowed in the German legal system and therefore the declaration of enforceability must be refused.
The appeal was found admissible but not justified. The matter is neither of fundamental importance nor does it require a decision by the Senate to ensure a uniformity of case law.
The court of appeal correctly held that the declaration of enforceability based on Article 34 of the new Lugano Convention (1) could not be denied. There was no violation of public order. The District Court of Meilen noted the statements of the respondent and included them in its considerations. However, based on § 149(3) of the ZPOP/ZH (2), the statement of a party in its own favour was not considered to be proof. Based on the decision of the BGH (3), a similar principle exists also in German law: free assessment of the entire statement presented by a party as evidence is allowed.
The court of appeal correctly considered that Article 45 of the new Lugano Convention sets out the grounds based on which the declaration of enforceability of a foreign judgment may be refused. Considering that a review of the foreign judgment as to its substance is prohibited, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of that State (4).
The findings of the court of appeal and the judgments of the Swiss courts make it clear that the decisions were taken on the basis of an overall assessment. The application of § 149 of the ZPO/ZH was only part of the overall picture. The District Court of Meilen conducted a detailed examination of the case, which was fully reviewed by the Supreme Court of the Canton of Zurich.
The appeal did not show that the respondent had no opportunity to comment nor that she was prevented from actively influencing the proceedings.
In addition, the negative rule of evidence affects both parties equally.
The BGH rejected the appeal of the respondent against the decision of the court of appeal as inadmissible.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano, 2007).
(2) Gesetz über den Zivilprozess des Kantons Zürich (Law on the Civil Procedure of the Canton of Zurich).
(3) See decision BGH of 03/14/1995, VI ZR 122/94.
(4) See decision BGH of 09/10/2015, IX ZB 39/13; Judgment BGH of 09/10/2015, IX ZR 304/13.