Oberlandesgericht Frankfurt ; 2019-04-30; Grundstückseigentümer; 20 W 326/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2019:0430.20W326.17.00
Date: 2019-04-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0430(52)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff (hereinafter ‘the plaintiff’) applied for the registration of a compulsory judicial mortgage as a debt-securing mortgage in the respective German land register.
The basis was a final decision of a Polish district court (hereinafter ‘the Polish decision’) against the obligor domiciled in Poland (hereinafter ‘the defendant’). For this purpose, the plaintiff presented the enforcement title and a certificate under Article 53 of the Brussels I Regulation (recast) (1).
The judicial officer of the Amtsgericht Eschwege (hereinafter ‘the Court of First Instance’), acting in the capacity of the land registry, registered the compulsory mortgage.
The defendant challenged this decision by a letter, which the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’) interpreted to be an appeal against the registration of the compulsory debt-securing mortgage. The defendant claimed that the enforcement title had not been served to him properly.
The appeal was admissible, but not successful.
The Polish decision was enforceable in Germany according to Article 39, Article 42(1) and Article 53 of the Brussels I Regulation (recast). The Court of Appeal concluded that the enforcement title was indeed not served properly to the defendant.
The Court of Appeal further stated that if a precautionary attachment under Article 720a of the ZPO (2) belonged to the protective measures under Article 40 of the Brussels I Regulation (recast), according to the prevailing opinion, which the Court of Appeal also joined, the full extent of the preconditions under Article 720a of the ZPO, in particular the service under Article 750(3) of the ZPO, could be applied or demanded within the scope of Article 40 of the Brussels I Regulation (recast). The overriding Article 43(3) of the Brussels I Regulation (recast), however, stipulates no duty to serve the decision and a certificate prior to the use of a protective measure under Article 40 of the Brussels I Regulation (recast).
The Court of Appeal dismissed the appeal of the defendant.
(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.
(2) Zivilprozessordnung (Code of Civil Procedure).