OLG Stuttgart; 2017-05-18; 17 VA 1/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2017:0518.17VA1.16.0A
Date: 2017-05-18
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0518(51)_ENG_SUMJURE
JURE summary
JURE summary
The case decided by the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) concerned the recognition of a foreign decision and the proper service of a document which instituted the proceedings.
The parties were Croatian citizens who married on 28 May 2004 in Stuttgart. The marriage was divorced by a decision of the Municipal court in Karlovac, Croatia, on 16 January 2013. Both participants lived in Germany when the divorce application was filed by the defendant with the municipal court.
The plaintiff filed an application with the Court of First Instance seeking that the court declares that the statutory preconditions for the recognition of the decision of the Municipal court were not given and the divorce declared by the Municipal court was not to be recognised. As reasoning, the plaintiff stated that she had no knowledge of the Croatian divorce proceedings, in particular because she had not been served with the divorce application. The Court of First Instance decided in favour of the plaintiff’s application and did not recognised the divorce.
The defendant claimed, however, that the plaintiff refused to take the letter from the Croatian court server by post and for that reason, she could not invoke the lack of service. The defendant applied for the applications of the plaintiff to be dismissed.
Under Article 109(1)(2) of the FamFG (1), the recognition of a foreign decision is excluded if a participant had not made any statement to the merits of the case and invoked the lack of service of document which instituted the proceedings in a proper manner or in good time so that it was impossible for the participant to exercise his/her rights. The Court of Appeal stated that both criteria, i.e. ‘proper manner’ and ‘in good time’, must be met cumulatively for the recognition of the judgment.
Croatia was not a Member State of the European Union in 2012 when the respective documents were delivered. The applicable law for service of documents outside the EU was the 1965 Hague Convention on Service of Documents (2). The Municipal court had not served the divorce application of the defendant to the plaintiff properly due to the fact that service made be a foreign court to a participant living in Germany was not considered to be a proper service as the Federal Republic of Germany had objected against this method of service provided for in Article 10 of the 1965 Hague Convention on Service of Documents.
The Court of Appeal dismissed the application of the defendant for the decision of the Court of First Instance to be annulled.
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).
(2) Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.