BGH; 2017-09-21; IX ZB 83/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:210917BIXZB83.16.0
Date: 2017-09-21
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0921(51)_ENG_SUMJURE
JURE summary
JURE summary
An applicant (hereinafter ‘the plaintiff’) applied for the enforcement of a judgment issued by a court in Den Haag, the Netherlands, which ordered the opponent of the application (hereinafter ‘the defendant’), among others, to pay a specific amount to the plaintiff as a jointly and severally liable debtor.
The Landgericht Bonn (hereinafter ‘the Court of First Instance’) decided to attach to the judgment an enforcement clause under Article 31 ff. of the Brussels Convention (1).
The appeal against this decision filed by the defendant with the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) was found inadmissible claiming that no reason for the denial of the recognition was given under Article 27(1) of the Brussels Convention. Further, the public policy had not been breached and no obstacle for the recognition existed under Article 27(2) of the Brussels Convention. The action had been served on the defendant properly. As with respect to the defendant’s location being in Iraq, no other convention took precedence, the proper jurisdiction was subject to Dutch law. The burden of proof regarding the alleged lack of timely service obliged to the defendant.
The revision filed by the defendant with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was justified.
The Court of Appeal was correct to conclude that the reason for denial under Article 27(1) of the Brussels Convention, applicable for court proceedings initiated prior to 1 March 2002, had not been fulfilled. The defendant had not stated that the recognition of the Dutch judgment would be contrary to German public policy.
However, the Court of Appeal falsely concluded that the recognition had not been prevented by the provision of Article 27(2) of the Brussels Convention. The document which instituted the proceedings had been served on the defendant by sending it to the Public prosecutor's office in Dordrecht. The bailiff in charge organised the action to be sent to Iraq to the defendant. As the defendant had not entered an appearance, the Court of Appeal was obliged to determine, whether, and if so, when the defendant really obtained the document instituting the proceedings in order to defend himself. This was not the case. In addition, the plaintiff had not met its burden of proof in relation to the service of the document instituting the proceedings.
The Supreme Court annulled the resolution of the Court of Appeal the extent where such resolution was unfavourable to defendant, and referred the case back to the Court of Appeal for a new hearing to the extent in which it annulled the decision.
(1) Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.