PIL instrument(s)

Case number and/or case name

OLG Stuttgart, 20.4.2009 – 5 W 68/08

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

19 April 2009

Appeal history

CJEU's case law cited by the court

Summary

The applicant requested the Regional Court Rottweil (Germany) to declare the enforceability of a judgment given by a Polish court in 2007 that stated the defendant’s obligation to pay damages. The Regional Court declared the enforceability. The defendant contested this decision. The Higher Regional Court corresponded to the defendant’s appeal. It held that the interest in bringing proceedings regarding the declaration of enforceability under Brussels I wasn’t given in case of the presence of a European Enforcement Order which has been confirmed by the court in the State of the judgment. Further, an incorrect designation of the parties could be corrected by interpretation and therefore in some cases couldn’t be considered as a reason to deny recognition within the meaning of Art. 34 Brussels I. The issue regarding the lack of interest in bringing proceedings given the presence of a European Enforcement Order isn’t considered uniformly in German scientific literature. Some say that the refusal of legal protection in these cases violated the principle stated in Art. 27 European Regulation on a European enforcement order for uncontested claims, saying that there should be a parallel applicability of both instruments. It is not clear whether the present interpretation by the Higher Regional Court hinders the effectiveness of the Brussels I Regulation. On the other hand, additional proceedings could violate the principle of res iudicata. It doesn’t seem clear how to exactly interpret the rule. Therefore the court should have made a preliminary reference to the CJEU. In this regard the decision can’t be considered correct.