EUPillar BGH, 12.12.2007 – XII ZB 240/05

Summary

The parties argued on a declaration of enforceability given by a German court. The judgment concerned maintenance claims that had been granted by an Italian court in 2004. The applicant contested the German court’s decision. The court held that Art. 34 no. 2 Brussels I in the proceedings of Art. 43 Brussels I generally had to be examined of the court’s own motion, i.e. without a corresponding claim by the defendant. Further, the proper delivery wasn’t a relevant factor within the examination of Art. 34 no. 2 if the debtor had received the document that instituted the proceedings on time. Serious lacks in delivery however were a strong indication of a lack in the principle of fair hearing. The court further announced that a defendant who hasn’t entered an appearance had the opportunity to challenge the judgment within the meaning of Art. 34 no. 2 Brussels I if he had become aware of the grounds of the judgment after a delivery of the default judgment. In German literature it is disputed whether Art. 34 no. 2 Brussels I has to be interpreted as meaning that its requirements can be examined by the court of its own motion. In this regard the court should have initiated a preliminary reference to the CJEU. Anyway, it doesn’t seem to have been necessary to discuss this issue because in the present case the defendant had explicitly claimed a violation of Art. 34 no. 2 Brussels I. The remaining statements are in accordance with the CJEU jurisdiction. The judgment therefore in this regard is correct.