Bundesgerichtshof; 2021-07-15; IX ZB 73/19
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2021:150721BIXZB73.19.0
Date: 2021-07-15
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0715(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned the timely filing of an appeal solely with the Oberlandesgericht (hereinafter ‘the Court of Appeal’) and a reinstatement due to erroneous advice concerning the possibility to appeal during proceedings regarding the refusal of enforcement.
The defendant had been awarded a title against the plaintiff in Greece providing for the seizure of the plaintiff’s assets by the means of a preliminary precaution. Subsequently, the plaintiff applied with the Landgericht Düsseldorf (hereinafter ‘the Court of First Instance’) requesting that the enforcement on the grounds of the respective title be refused. The decision of the Court of First Instance which refused the enforcement contained advice regarding the possibility of lodging an appeal, which included, amongst other things, the information that an immediate appeal could be filed either with the Court of First Instance or the Court of Appeal.
The defendant filed an immediate appeal with the Court of First Instance. The Court of First Instance referred the case for a decision to the Court of Appeal. The Court of Appeal found the appeal inadmissible stating that the appeal had not been submitted to the Court of Appeal, as the sole court which was competent to receive the appeal, in due time.
The Court of Appeal expressed the opinion that an immediate appeal against a decision of a Court of First Instance could only be submitted in due time to the Court of Appeal, citing Article 49(2) of the Brussels I Regulation (recast) (1) in connection with Article 75(b) of the Brussels I Regulation (recast).
The Supreme Court found that the defendant was prevented, through no fault of their own, from meeting the deadline for lodging an appeal under the EU law, having the form of an immediate appeal in Germany, under Article 49(1) of the Brussels I Regulation (recast). The prevention was caused by erroneous advice contained in the decision of the Court of First Instance which also allowed for the immediate appeal to be lodged with the Court of First Instance.
The Supreme Court confirmed that an appeal under the EU law, having the specific form of an immediate appeal in Germany, against a decision regarding the application for the refusal of enforcement may only be lodged with a Court of Appeal.
With regard to the above facts, the Supreme Court dismissed the appeal of the defendant and referred the case for a new decision, also with regard to the costs of proceedings, to the Court of Appeal.
(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.