Case number and/or case name
OLG Düsseldorf, 13.9.2007 – I-3 W 159/06
Details of the court
Germany, Second Instance
Articles referred to by the court
Brussels I
Article 34
Paragraph 1
Paragraph 2
Paragraph 3
Paragraph 4
Article 43
Paragraph 1
Paragraph 2
Paragraph 3
Paragraph 4
Paragraph 5
Date of the judgement
12 September 2007
CJEU's case law cited by the court
Summary
The defendant contests the declaration of enforceability of an Italian payment order (decreto ingiuntivo immediatamente esecutivo) granted by a German Court.
The Higher Regional Court denied the enforceability of the payment order in view of the rule in Art. 34 no. 2 Brussels I. It held that in case of this kind of provisionally enforceable decision there was no document which initiated the proceedings. The decision is made without a precedent hearing of the defendant who in absence of a prior delivery of documents isn’t able to defend himself before the enforceable decision is granted.
Art. 34 no. 2 Brussels I aims to ensure the fair hearing. Decisions that are intentionally made in absence of the other party to cause a surprise effect are left out by the scope of application of the Regulation. But the present order can’t be considered as such a decision. Therefore the decision is correct.