EUPillar BGH, 17.12.2009

Summary

The applicant contested the decision of the Higher Regional Court saying that his application of enforceability has to be refused. Before, the judgment of the court in Naples (Italy) had been declared enforceable by the Regional Court. The Federal Court of Justice had to decide whether the requirements of Art. 34 no. 2 Brussels I were fulfilled. In that case the Higher Regional Court’s decision would have been correct. The Federal Court of Justice stated that in case of a default judgment Art. 34 no. 2 couldn’t prevent the execution of the enforcement if the defendant had had the opportunity to lodge an appeal in the country where the judgment was given by claiming that the document initiating the proceedings hadn’t been transmitted in a way that made it possible to arrange for his defence. The judgment of the Federal Court of Justice is in accordance with the wording of the rule. Further, the interpretation is in accordance with the jurisdiction of the CJEU in C-420/07 where the Court held that the recognition or enforcement of a default judgment cannot be refused under Art. 34 no. 2 where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence. Therefore the judgment is correct.