BGH; 2017-05-11; V ZB 175/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:110517BVZB175.15.0
Date: 2017-05-11
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0511(51)_ENG_SUMJURE
JURE summary
JURE summary
A private limited company domiciled in and existing under the laws of Italy (hereinafter ‘the plaintiff’) applied for a debt-securing mortgage to be registered in relation to a plot of land of a private person in Germany (hereinafter ‘the defendant’).
Through a writ of attachment issued by an Italian court, the plaintiff was entitled to apply the attachment up to the amount of EUR 1,000,000 to movables, immovables, tangible and intangible values or financial claims of the defendant. This resolution had been declared enforceable in Germany.
The Amtsgericht München, in its capacity as the Land registry office, rejected the application for registration.
The following complaint lodged against this decision was dismissed by the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) stating that the registration was prevented due to the expiration of the enforcement period of 1 month under Article 929(2) of the ZPO (1). It further claimed that the enforceability of a foreign decision under Brussels I Regulation (2) had the same content as the relevant domestic legal instrument, the writ of seizure (Arrestbeschluss). The enforcement itself was therefore subject to German lex fori and the period of time set out in Article 929(2) of the ZPO was also to be applied to the enforcement of the Italian judgment.
Subsequently, the defendant filed an appeal with the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
The Supreme Court stated that the Court of Appeal correctly assumed that the Italian writ of attachment had the same function as writ of seizure (Arrestbeschluss) under German law.
The enforcement period of one month serving to the protection of the debtor is to be examined by the authorities by their own motion. At this stage of proceedings, it was not necessary to examine whether Italian law also provided for a specific enforcement period.
As the Supreme Court could not obtain the required level of certainty to reach a decision as to whether Article 38(1) of the Brussels I Regulation allows for a period of time set out under the laws of the enforcement country (e.g. Article 929(2) of the ZPO) the expiration of which prevents the enforcement of an enforcement title (writ of seizure (Arrestbefehl)) to be also applied to an comparable enforcement title issued in another Member State which had been recognised and declared to be enforceable in the enforcement state, the Supreme Court referred the question to the Court of Justice of the European Union for a preliminary ruling.
(1) Zivilprozessordnung. (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.