BGH; 2018-04-26; IX ZB 15/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:260418BIXZB15.16.0
Date: 2018-04-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0426(53)_ENG_SUMJURE
JURE summary
JURE summary
The dispute concerns the declaration of enforceability of a decision of a foreign court on which the Bundesgerichtshof (hereinafter ‘the Supreme Court’) has ruled.
On 4 May 2009, the plaintiff obtained a decision of the Municipal Court of Keszthely, Hungary, according to which the defendant’s father, who has since passed away, was ordered to pay the plaintiff the sum of HUF 2 500 000 plus interest and costs.
The Landgericht Mönchengladbach ordered, by a judgement of 9 January 2012, that the decision of the Hungarian Municipal Court be accompanied by an enforcement order. Upon an immediate appeal lodged by the defendant, the Oberlandesgericht Düsseldorf (hereinafter ‘the Court of Appeal’) set aside the order of 9 January 2012 and dismissed the application for a declaration of enforceability on the grounds that the certificate issued by the Municipal Court of Keszthely in these proceedings did not indicate the date of service of the document instituting the proceedings.
By its appeal to the Supreme Court, the plaintiff sought to have the defendant’s immediate appeal dismissed and the decision of the Municipal Court of Keszthely to be declared enforceable.
According to the Supreme Court, the appeal is founded but inadmissible. The Brussels I Regulation (1) is applicable to the procedure. Under Article 45 of the Brussels I Regulation, the declaration of enforceability can be refused or revoked only on one of the grounds listed under Articles 34 and 35. According to Article 34(2) of the Brussels I Regulation, a judgment shall not be recognised if a defendant who did not enter an appearance was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to contest the judgment when it was possible for him to do so.
The Supreme Court examined whether, in accordance with Article 54 of the Brussels I Regulation, the document instituting the proceedings in the form of a certificate issued by the court of the State of the judgment had been served in due time. The evidential value of such a certificate was determined in Case C-619/10 (2). However, the principles relating to the evidential value of an authentic foreign instrument are not called into question by the fact that no evidential value can be attributed to the certificate at issue because the Hungarian Municipal Court did not indicate a date of service in certificates issued previously.
The plaintiff’s appeal against the order of the Court of Appeal was therefore dismissed as inadmissible.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of 6 September 2012, Trade Agency Ltd, C-619/10, ECLI:EU:C:2012:531, paragraphs 34 to 36.