BGH; 2017-05-17; VII ZB 64/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:170517BVIIZB64.15.0
Date: 2017-05-17
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0517(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns the aversion of an enforcement from an Italian enforcement title against the provision of a security and the law-abusing objection of insufficient proof of the security through a public instrument. The case was decided by the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
On 15 June 2015, the plaintiff obtained a decision of an ordinary court R in Italy against the defendant. After the Landgericht M. (hereinafter ‘the Court of First Instance’) declared this decision to be enforceable with its resolution from 25 August 2015, it further issued an enforcement clause on 7 September 2015 stipulating that for the time being, the enforcement could not exceed the securing measures and that the defendant could avert the enforcement by providing a security in the amount of the enforceable claim.
Subsequently, the Court of First Instance issued an attachment order (Pfändungsbeschluss). The defendant objected against this decision claiming that it had already provided a security in the meantime. The Court of First Instance then annulled the attachment order (Pfändungsbeschluss). The plaintiff filed an immediate objection against this resolution which was dismissed by the Court of Appeal on 11 November 2015.
Sec 20(1) and (2) AVAG (1) stipulates that if the enforcement which is based on a financial title may not exceed the securing measures, the obliged party can avert the enforcement by providing a security in the amount of the enforceable amount. If the obliged party proves via a public instrument that it has provided the security which is necessary to avert the enforcement, the enforcement is to be discontinued and any enforcement measures taken to be annulled.
The proof of the security via a public instrument pursuant to Sec. 20(2) AVAG may exceptionally become unnecessary if the objection of the debtor that the proof of security has not been made through a public instrument proves to be law-abusing.
Under Article 66(2) of the Brussels I Regulation (recast) (2), the Brussels I Regulation (3) remains applicable for decisions in proceedings initiated before 10 January 2015. Pursuant to Article 47(3) of the Brussels I Regulation, the enforcement into the assets of the debtors may not exceed the securing measures as long as the period of time set out in Article 43(5) of the Brussels I Regulation for appellate remedies against the enforcement is still running and the decision regarding the appellate remedy has not yet been made.
(1) Anerkennungs- und Vollstreckungsausführungsgesetz. (Recognition and Enforcement Execution Act).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.