Case number and/or case name
OLG Düsseldorf, 16.8.2012 – I-3 W 53/12
Details of the court
Germany, Second Instance
Articles referred to by the court
Brussels I
Article 43
Paragraph 1
Paragraph 2
Paragraph 3
Paragraph 5
Date of the judgement
15 August 2012
CJEU's case law cited by the court
Summary
The parties argued on the declaration of enforceability regarding a Hungarian payment order. It was doubtful whether the payment order could be declared enforceable by German courts. The first instance court granted the enforceability.
The second instance court contested this decision. It held that the defence within the meaning of Art. 34 no. 2 Brussels I couldn’t be arranged by the defendant if he had received a document that solely named the first instance court’s decision on enforceability and solely referred to its tenor. In that case it couldn’t be assumed that the defendant became fully aware of the judgment’s content.
The CJEU stated in C-283/05 (ASML ./. SEMIS) that it was required that the defendant in fact has been acquainted with the judgment’s contents. In the present case the documents solely named the judgment and referred to its tenor. It is doubtful whether this was sufficient to assume enforceability. It seems however reasonable that the court denied the declaration of enforceability. The defendant’s position has already been weakened by abandoning the requirement of a formally correct delivery. This shouldn’t be intensified by reducing the requirements on the defendant’s awareness of the judgment.