PIL instrument(s)

Case number and/or case name

BGH, 21.1.2010 – IX ZB 193/07

Details of the court

Germany, Third Instance

Articles referred to by the court

Date of the judgement

20 January 2010

Appeal history

CJEU's case law cited by the court

Summary

The defendant was obliged to payment to the plaintiff by a payment order issued by an Italian court. The defendant didn’t participate in the Italian proceedings. The company management of the defendant did not receive the payment order. The plaintiff pursues the declaration of enforceability of the payment order by German courts. The question was whether the defendant could refer to not having received the payment order which is a document instituting proceedings in Italian law. The previous instance stated that the declaration of enforceability violates Art. 34 no. 2 Brussels I because the defendant had not participated in the proceedings. The court stated that the defendant in a proceeding regarding enforceability cannot refer to the fact that the document which institutes the proceeding wasn’t delivered to him. This applies only to cases where the defendant has a legal remedy in the country of origin which allows him to assert the non-delivery. If the defendant did not lodge any appeal against the non-delivery, he can’t refer to it in the proceeding for enforceability. The court discussed which actions, applications or requests are covered by the term proceedings within the meaning of Art. 34 no. 2 Brussels I. In accordance with scientific literature and the CJEU’s judgment in C-474/93 and various other cases the court interprets the term broadly and states that the Italian payment order (decreto ingiuntivo) is a document that institutes the proceeding. The judgment is correct.