Bundesgerichtshof; 2019-09-19; Vollstreckungsgläubiger; Vollstreckungsschuldner; BGH IX ZB 16/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2019:190919BIXZB16.18.0
Date: 2019-09-19
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0919(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned an application for a Romanian judgment to be declared enforceable.
In 2014, the insolvency administrator of a company, C., domiciled in Romania filed an action against the defendant with a Romanian specialised insolvency court in Mures seeking the payment of LEI 2_668_174.89. The insolvency administrator claimed that the defendant, who was the previous director of the company, caused the insolvency by breaching the law repeatedly and that the plaintiff was entitled to receive an amount of LEI 159_176.89. The specialised court in Mures ordered the defendant to pay the whole amount. The insolvency administrator advised the plaintiff that in his opinion, it would be most convenient if the creditor itself applied the enforcement.
The plaintiff applied for an enforcement clause to be attached to the final judgment of 4 June 2015. The Landgericht Stendal (hereinafter ‘the Court of First Instance’) decided in favour of the application. Based on an appeal of the defendant, das Oberlandesgericht Naumburg (hereinafter ‘the Court of Appeal’) dismissed the application. The plaintiff pursued its claim further by filing a revision.
The applicable law in this case was the Brussels I Regulation (1). After Romania joined the EU on 1 January 2007, the scope of the Brussels I Regulation was also extended to Romania as a new Member State.
The Supreme Court concluded that under Article 7(1) AVAG (2), a foreign decision might be declared enforceable in favour of a person other than the person stated in the decision provided that such decision might be declared enforceable in favour the other person under the laws of the Member State where it had been issued. According to Article 7(2) AVAG, the creditor who filed the application must prove that it is entitled to the enforcement under the laws of the Member State where the respective decision was issued. If the application for the declaration of a foreign decision is not submitted by the enforcement creditor but a third person instead, such third person is obliged to prove its entitlement to the enforcement under the laws of the Member State where the respective decision was issued.
According to the Supreme Court, this fact can be proved not only by documents, but by any form of evidence. The Supreme Court dismissed the revision citing the lack of admissibility.
(1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Anerkennungs- und Vollstreckungsausführungsgesetz (Act regarding the Recognition and Enforcement of Judgments).