OLG München; 2016-01-19; 34Wx 401/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2016:0119.34Wx401.15.0A
Date: 2016-01-19
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0119(51)_ENG_SUMJURE
JURE summary
JURE summary
A bank domiciled in Austria (hereinafter ‘the plaintiff’) applied for a forced mortgage regarding a co-owner share of a debtor (hereinafter ‘the defendant’) to a plot of land to be registered in the German land register.
The application was based on a bill of exchange payment order issued by an Austrian Landesgericht against the defendant domiciled in Germany. This payment order had been declared enforceable by a court in Austria.
After the Amtsgericht Passau acting in the capacity of Land registry office (hereinafter ‘the Court of First Instance’) informed the plaintiff that the provided documents were not sufficient as a basis for the enforcement and the plaintiff did not present any further evidence, the Court of First Instance dismissed the application.
The plaintiff lodged an appeal with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) against this decision. The appeal was not successful.
Under Article 38(1) of the Brussels I Regulation (1), the Austrian court judgment needed to have been declared enforceable in Germany, this representing a constitutive sovereign act. However, the plaintiff did not present any court decision of a competent court of the enforcing state (Germany) under Article 39 of the Brussels I Regulation. The certificate issued by an Austrian Landesgericht regarding the enforceability of the bill of exchange payment order was not a sufficient replacement for the necessary court decision of a German court within the recognition and enforcement proceedings. It was rather to be presented within the exequatur.
It is not necessary for a title to be declared enforceable if it had been confirmed as a European Enforcement Order under Article 5 of the Regulation (EC) No 805/2004 (2) in Austria. Despite having filed such an application, the plaintiff failed to present any final decision in this respect.
The Court of Appeal dismissed the appeal of the plaintiff against the decision of the Court of First Instance.
(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) Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims.