EUPillar BGH, 23.9.2015 – XII ZB 234/15

Summary

The parties argued about the declaration of enforceability of a judgment given by a Dutch court. The judgment on the husband’s maintenance obligations was firstly given by a Dutch court in 2011. This judgment was modified by another Dutch court in 2014 where the amount of the claims was reduced. The wife claimed for the declaration of enforceability in Germany. The German first instance court granted the enforcement clause, whereas the husband’s appeal against this decision before the second instance was not successful. The German Federal Supreme Court only marginally modified the amount of the claim which had been stated by the second instance court. It held that in proceedings on the declaration of enforceability of claims falling under the exequatur regime, the courts charged with an appeal pursuant to Art. 32 or 33 Maintenance Regulation had to – until the completion of the exequatur proceeding – unrestrictedly examine whether and to what extent the foreign judgment in the first state has been annulled or modified. The decision of the Dutch court in 2014 was therefore to be taken into consideration within the proceedings of the declaration of enforceability. The examination within the redress procedures extended to all requirements of the declaration of enforceability which the first instance court would have been allowed to examine, especially the formal enforceability of the title in the state of origin – including the question whether the foreign decision was annulled or modified. The court therefore stated that the decision of the Dutch court in 2009 could regarding the period of time beginning in 2014 not be declared enforceable because of the lacking formal enforceability in the Netherlands in view of the second Dutch judgment in 2014. With regard to potential reasons to refuse the declaration of enforceability, the Court referred to the CJEU’s case law on Art. 45 Brussels I. The Court had stated (Prism Investments) that ‘Art. 45 Brussels I must be interpreted as precluding the court with which an appeal is lodged under Article 43 or Article 44 of that regulation from refusing or revoking a declaration of enforceability of a judgment on a ground other than those set out in Articles 34 and 35 thereof, such as compliance with that judgment in the Member State of origin.’ (para 44 of the judgment). In view of this ruling, the German Federal Supreme Court stated to give up his jurisdiction saying that legally binding determined material objections could be considered within the proceedings of the declaration of enforceability pursuant to Art 23 et seqq Brussels I - and correspondingly Art 23 et seqq Maintenance Regulation - without violating European law.