Case number and/or case name
OLG Naumburg, 3.8.2007 – 6 W 74/07
Summary
The parties argued on the declaration of enforceability of a French title in Germany. It was doubtful whether the French decision could be declared enforceable in view of the rule in Art. 49 Brussels I.
The court held that interim decisions as the order of a penalty payment (astreinte) could solely be declared enforceable if the proceedings regarding the payment order have been terminated in a legally binding way. Further, a foreign (here: French) judgment wasn’t enforceable if the amount of the penalty payment hasn’t been determined by the courts of the State of origin (astreinte définitive).
The decision can’t be considered fully correct. In French law there are two kinds of penalty payments: the astreinte provisoire and the astreinte définitive. In the first case the amount of the payment has to be determined, in the second case the amount is already fixed. An astreinte definitive is always followed by an astreinte provisoire. But, after granting an astreinte provisoire there’s also the possibility of liquidation which states a definite amount. In the present case the liquidation has brought an amount of 94.000€ and therefore there has been a clear amount of the payment order. In general, it is correct to refuse the enforcement of undefined payment orders but in the present case it shouldn’t have been refused.