EUPillar OLG Köln, 17.11.2004

Summary

The parties argued on the declaration of enforcement granted by a German court. The declaration concerned a decreto ingiuntivo of Italian law. The court had to examine whether this order could be considered as a judgment within the meaning of Art. 32 et seq. Brussels I. The court stated that the decreto ingiuntivo was a ‘judgment’ within the meaning of the Brussels I Regulation. It held that this assumption wasn’t contrary to the fact that the first period of the proceedings hasn’t had an adversarial nature as long as the defendant has had the opportunity to defend himself in a later stadium of proceedings. This was assumed because the legal validity of the decreto ingiuntivo was solely given if the defendant had been granted the opportunity to arrange for his defence. It was sufficient that the order given by the court was a potential issue of an adversarial proceeding. Further, the fact that in Italy there were further requirements regarding the objection against the payment order compared to those in German law weren’t sufficient to a assume a violation of public policy according to Art. 34 no. 1 Brussels I. In German literature it is accepted that ‘judgments’ within the meaning of the Brussels I Regulation can be assumed if the order given by the judicial body inhibits the possibility of adversarial proceedings. Also, a violation of public policy shouldn’t be assumed to easily: the rule in Art. 34 no. 1 Brussels states an exception to the principle of the recognition and enforcement of foreign judgments. The restrictive interpretation by the court that also has been encouraged by the CJEU in C-420/07 therefore is reasonable. The judgment is correct.