BGH; 2022-07-07; IX ZB 38/21
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:070722BIXZB38.21.0
Date: 2022-07-07
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0707(51)_ENG_SUMJURE
JURE summary
JURE summary
A debtor domiciled in Germany (hereinafter the ‘plaintiff’) filed an application under Article 46 of the Brussels I Regulation (recast) (1) demanding the refusal of an enforcement under two European enforcement orders.
The European enforcement orders were based on a default judgment of an Austrian district court Graz-Ost and a resolution made by the Landesgericht Graz ordering the plaintiff to pay the fee of his attorney.
The Landgericht Bonn (hereinafter ‘the Court of First Instance’) dismissed the application of the plaintiff regarding the default judgment of the district court Graz-Ost, citing a lack of substantiation. A decision regarding the application for the refusal of enforcement of the resolution of the Landesgericht Graz had not been made yet.
An appeal lodged by the plaintiff with the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) was unsuccessful. The application for the refusal of an enforcement based on the default judgment confirmed in the form of a European enforcement order was dismissed. No decision was made regarding the application for the refusal of enforcement based on the resolution of the Landesgericht Graz, which had also been confirmed in the form of a European enforcement order.
The plaintiff pursued both applications further by filing a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) but was unsuccessful. His revision was found inadmissible for its failure to meet the preconditions under Article 574(2) of the der ZPO (2).
Concerning the application for the refusal of the enforcement based on the resolution of the Landesgericht Graz, the revision was found inadmissible for the fact that the Court of Appeal had not decided on the application yet.
Concerning the application regarding the default judgment of the district court Graz-Ost, the decision of the Court of Appeal was ultimately also correct. However, the Court of Appeal overlooked that the application had been inadmissible from the beginning. If a decision is enforced in the form of a European enforcement order, the defence possibilities of a debtor (in this case the plaintiff) are in the enforcement Member State (Germany) limited solely to the means under Regulation (EC) No 805/2004 (3), in particular the application for the refusal of enforcement, or the stay or limitation of enforcement under Articles 21 and 23.
For persons subject to enforcement under a European enforcement order, it is not admissible to defend themselves using an application for the refusal of enforcement under Article 45 of the Brussels I Regulation (recast), as for claims being asserted by a European enforcement order, the courts of the enforcement Member State may not carry out any examination regarding the public policy (ordre public). An application to that extent would open up an examination possibility in the enforcement Member State, which would even exceed the principle of the public policy (ordre public).
(1) 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.
(2) Zivilprozessordnung (Code of Civil Procedure).
(3) Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims.