OLG Hamm; 2020-05-27; 27.05.2020
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2020:0527.8U135.19.00
Date: 2020-05-27
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0527(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns an appeal against a previous order of the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) in enforcement proceedings.
In 2003, the Landgericht Bielefeld (hereinafter ‘the Court of First Instance’) ordered the losing party in the dispute (the plaintiff in the present case, hereinafter ‘the plaintiff’) to pay a substantial sum of money to the winning party (the defendant in the present case, hereinafter ‘the defendant’).
Following the plaintiff's appeal against the enforcement of the 2003 judgment, the Court of Appeal issued an interim order in February 2020 suspending the enforcement of the 2003 judgment against the provision of security pending a final decision.
The present case concerns the subsequent appeals lodged by both parties against the interim order of February 2020. The plaintiff requested an extension of the suspension of the enforcement against other assets, while the defendant requested that enforcement continue. In the alternative, the defendant requested authorisation for preventive enforcement (Sicherungsvollstreckung) according to Section 720a of the ZPO (1).
As to jurisdiction, the Court of Appeal referred to the plaintiff’s suggestion that the German courts had jurisdiction under Section 767(1) of the ZPO (Vollstreckungsabwehrklage, i.e. action opposing enforcement), but the court held that European Union law was likely to prevail in this matter, in particular the provisions of Article 24 of the Brussels I Regulation (recast) (2). The Court of Appeal recalled that the (unwritten principle of EU law) of perpetuatio fori applies even if the facts justifying jurisdiction cease to exist during the course of the proceedings.
The Court of Appeal recalled that the decision to grant an interim injunction must consider the disadvantages threatening the debtor and the prospects of success of the action, while also considering always the economic interests of the creditor in a speedy enforcement.
According to the court, the plaintiff does not need further legal protection as long as the defendant still has an enforceable title. An extension of the stay to other measures sought by the plaintiff (to cover a registered protective mortgage in favour of the defendant) was also rejected. The Court of Appeal considered that there was no threat of enforcement against the property secured by the mortgage, so that the plaintiff did not need any further security in this respect.
The defendant relied on a new agreement between the parties, which the defendant described as an acknowledgement of debt (Schuldanerkenntnis). However, the Court of Appeal stated that the defendant had failed to specify when, where and between which parties such an agreement had been concluded. The Court of Appeal held that the legal intentions of the relevant parties in this alleged agreement cannot and need not be clarified and decided at this stage - in the consideration of the interim injunction.
The defendant's alternative claim for preventive enforcement was also rejected. According to the Court of Appeal, the defendant's economic interests were sufficiently protected by the fact that the stay of enforcement was only granted against the provision of security. In fact, the enforcement proceedings should remain stayed because the plaintiff’s appeal against the enforcement in the main proceedings was likely to succeed on the merits.
After considering the mutual interests of the parties, the Court of Appeal dismissed both appeals and confirmed the stay of the enforcement proceedings.
(1) Zivilprocessordnung (Code of Civil Procedure).
(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 (recast).