BGH; 2018-12-13; V ZB 175/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:131218VZB175.15.0
Date: 2018-12-13
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1213(51)_ENG_SUMJURE
JURE summary
JURE summary
A company domiciled in Italy (hereinafter ‘the plaintiff’) requested to register a shared debt-securing mortgage against a residential apartment in Germany with two underground parking spaces owned by a private individual (hereinafter ‘the defendant’).
The plaintiff’s basis for doing so is a preventative attachment issued by the Italian court up to an amount of EUR 1 million on the assets of the debtor in favour of the plaintiff.
The Amtsgericht München (hereinafter ‘the Court of First Instance’) rejected the application.
The Oberlandesgericht München (hereinafter ‘the Court of Appeal’) rejected the plaintiff’s appeal against the order of the Court of First Instance. The one-month time limit for the enforcement pursuant to Section 929(2) of the ZPO (1) was not observed.
By its appeal to the Bundesgerichtshof (hereinafter ‘the Supreme Court’), the plaintiff sought to register the debt-securing mortgage.
The Court of Justice of the European Union made a preliminary ruling on the request of the Supreme Court, with the result that Article 38 of the Brussels I Regulation (2) be interpreted such that a time limit provided for the enforcement under the law of the executing State is also to be applied as a functionally comparable instrument of another Member State.
The preventative attachment in accordance with Italian law is comparable to the German attachment order and therefore the one-month time limit is applicable for its enforcement pursuant to Section 929(2) of the ZPO.
When the plaintiff applied for registration of the debt-securing mortgage, more than one month had elapsed since the plaintiff received the declaration of enforceability, and the one-month time limit was therefore not observed.
The Supreme Court dismissed the appeal made by the plaintiff against the order of the Court of Appeal.
(1) Zivilprozessordnung (German code of civil procedure).
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.