EUPillar OLG Nürnberg, 22.12.2010

Summary

The applicant is an English Private Company Limited by Shares in liquidation. It acquired a Worldwide Asset Freezing Order (WAFO) against the defendant, a German living in Nuremberg, who was chairman of the board of the applicant’s parent company. The WAFO prohibits the defendant to withdraw or dispose of assets in England or Wales up to 8 million US dollar of which the respondent has direct or indirect power of disposal. The applicant applied for the declaration of enforceability of the WAFO in Germany aiming for the effect that the defendant is unable to dispose in any way of his bank assets in Germany up to a sum of 8 million US dollar. The competent court accepted the application for declaration of enforceability. The defendant now appeals against this decision. The court supports the decision of the previous instance and declares that there are no reasons to refuse the declaration of enforceability of the WAFO in Germany. In general the WAFO does not violate the German ordre public (public policy) within the meaning of Art. 34 no. 1 Brussels I. The declaration of enforceability can’t be set aside on the basis of Art. 45(1) in connection with Art. 34 no.1 Brussels I as the declaration does not seem obviously intolerable in regard to the domestic legal culture. The WAFO is an extensive measure of security but in contrast to the respondent’s concerns the WAFO does not contradict the basic principles of the German foreclosure law as a similar regulation can be found in §§ 916 et seq ZPO (German Code of Civil Procedure) and the WAFO includes legal provisions to protect the debtor. These legal provisions aiming to protect the debtor and every other provision in the WAFO take direct effect in Germany so that the court doesn’t have to adopt specific regulations concerning this matter. The court holds that the amounts that are exempted from execution by German law are significantly lower than the amounts granted by the WAFO. Thus, the declaration can’t be considered contrary to public policy in Germany. The declaration also can’t be refused pursuant to Art. 45 (1) in connection with Art. 34 no. 2 Brussels I as the respondent already engaged into the court proceedings in London and thereby waived his right to refer to Art. 34 no. 2 Brussels I. The suspension of proceedings within the meaning of Art. 46(1) has to be handled carefully and restrictively. The requirements of Art. 46 Brussels I are not met and the decision of the court in the member state of origin isn’t obviously incorrect. When the court decides whether a security has to be provided in order to execute a decision it has to take into account the securities that were provided in the other member state. In this decision the court has a broad discretionary power In general it is highly welcome that the domestic public policy as a ground for refusal of a declaration of enforceability is handled restrictively. The same applies to the other grounds for refusal that are addressed in this judgment. In this case the German literature generally supports the court’s decision, yet it is criticized that the court did not distinguish between the ex parte and inter partes rapid decision concerning a WAFO. It is not unquestionable if the ex parte rapid decision concerning a WAFO may be recognized without doubt in another member state.