BGH; 2018-01-25; IX ZB 89/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:250118BIXZB89.16.0
Date: 2018-01-25
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0125(51)_ENG_SUMJURE
JURE summary
JURE summary
A plaintiff domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against a defendant domiciled in Poland (hereinafter ‘the defendant’) claiming compensation for damage.
The Landgericht Berlin (hereinafter ‘the Court of First Instance’) upheld the action of the plaintiff and declared the judgment to be preliminarily enforceable against the provision of a security.
The defendant lodged an appeal against this decision with the Kammergericht Berlin (hereinafter ‘the Court of Appeal’). In the course of the appeal proceedings, which are still pending, the plaintiff applied for the issuance of the certificate under Article 53 of the Brussels I Regulation (recast) (1).
The judicial officer (Rechtspflegerin) of the Court of Appeal rejected this application of the plaintiff. The objection of the plaintiff against the rejection was dismissed by the Court of Appeal which argued that the decision of the Court of First Instance had been preliminarily enforceable solely on the basis of a security which the plaintiff had failed to provide.
The plaintiff pursued its application further through a complaint, admitted by the Court of Appeal, filed with the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
The plaintiff, who wanted to carry out the enforcement in Poland, is under Article 42(1) of the Brussels I Regulation (recast), obliged to present the relevant enforcement authority an example of the decision to be enforced and a certificate issued under Article 53 of the Brussels I Regulation (recast) using the form set out in Annex I of the Regulation.
In point 4.4. it is necessary to answer the question of whether the judgment is enforceable in the Member State of origin without any further conditions having to be met. Sub-points 4.4.1. to 4.4.3. can be answered solely with ‘Yes’, sub-point 4.4.4. is not decisive.
According to German law, the judgment of the Court of First Instance is enforceable. The fact that the preliminary enforceability is subject to the provision of a security does not prevent the plaintiff from being able to pursue a precautionary attachment without providing security after the expiration of two weeks from when the defendant has been served the judgment equipped with the enforceability clause.
The form set out in Annex I of the Brussels I Regulation (recast) does not take sufficiently into account the differences existing between finally and not finally effective judgments under the perspective of enforcement law. Therefore, doubts exist around how special requirements under national law regarding the enforcement of not finally effective decisions are to be classified. This is particularly the case if such provisions, as under German law, open up different enforcement possibilities in relation to not finally effective decisions. There is a risk that that a judgment the enforcement of which is in the Member State of origin subject to a security, would open other enforcement possibilities in the enforcing Member State.
The Supreme Court stayed the proceedings and approached the Court of Justice of the European Union for a preliminary ruling seeking the clarification of whether the order of the court of origin providing for the judgment to be preliminarily enforceable solely against a security represents a condition within the meaning of point 4.4. of the form in the Annex I of the Brussels I Regulation (recast).
(1) 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.