PIL instrument(s)

Case number and/or case name

OLG Köln, 17.3.2004 – 16 W 2/04

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

16 March 2004

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about the declaration of enforceability regarding a Dutch judgment on a penalty payment. The court first held that the applicant observed the time limit stated in Art. 43 (5) Brussels I if he had lodged the appeal mentioned in Art. 43 (2) Brussels I before another court as indicated in Annex III provided that this has occurred before the first instance court according to § 11 (2) of the German law of execution of Regulations on international jurisdiction (AVAG). Further, the court held that a Dutch decision regarding a penalty payment could according to Art. 49 Brussels I not be recognised if the creditor named in the document was allowed to determine if and to what extent there had been a violation of an injunction order given that Dutch courts haven’t ruled on the question of penalty payment’s amount. The court’s interpretation regarding Art. 42 (2) Brussels I promotes the applicant’s protection. It is in accordance with the principle of the ‘most favoured nation treatment’ (‘Meistbegünstigung’) of German procedural law. It is however not clear if the Regulation can be interpreted in that way because this is in concurrence with the clear wording of Art. 42 (2) Brussels I. In other aspects the court applied the Regulation’s rules directly connected to their wording. The judgment is correct.