PIL instrument(s)

Case number and/or case name

BGH, 3.8.2011 – XII ZB 187/10

Details of the court

Germany, Third Instance

Articles referred to by the court

Date of the judgement

02 August 2011

Appeal history

CJEU's case law cited by the court

Summary

The parties argued on the opponent’s obligation to provide maintenance. The statement of claim of the Polish proceedings was submitted to the opponent’s domicile in Germany in 2007. The opponent then gave back the documents to the German receiving point claiming that he wasn’t involved in the issue and knew neither child nor mother. In 2008 the paternity of the opponent was declared by the Polish Local Court. The Regional Court in Germany declared the decision enforceable. The enforceability was contested by the opponent. The court had to consider whether the enforceability of the Polish Local Court’s judgment in Germany fell within the scope of application of Art. 45 (1), 34 no. 2 Brussels I. The court held that Art. 34 no. 2 Brussels I targeted the actual exercise of defence rights. The possibility of exercising the defence rights could be assumed as soon as the opponent becomes aware of the proceedings and therefore could have had arranged for his defence. The court therefore denied the applicability of Art. 34 no. 2 Brussels I. The court decided correctly that the rule in Art. 34 no. 2 Brussels I doesn’t have to be interpreted in the same way as the precedent rule in Art. 27 no. 2 of the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (EuGVÜ) that is meaning that the delivery has to be formally correct. The purpose of the rule is to ensure the fair hearing of the defendant. According to the Regulation’s draft (see COM (1999) 348) it was necessary to avoid the case that a person escapes from the enforcement order by abusing the rules concerning the formally correct delivery. It was therefore sufficient that the opponent has had the possibility to exercise his defence rights. He didn’t complain about the language of the statement of claim but made a statement concerning the proceedings’ content. He was aware of the proceedings that had been initiated against him. Therefore Art. 34 no. 2 Brussels I in the present case didn’t exclude the enforceability.