EUPillar BGH, 26.8.2009 – XII ZB 169/07

Summary

The parties argued about the enforceability of a Polish judgment on maintenance claims. Within the Polish proceeding, the defendant has been asked about his relationship to the claimant’s mother. He said that he had never had sexual relationships to her. In the course of the proceeding the claimant’s grandmother was heard. She explained that the claimant’s mother had resolutely told her that the defendant was the father. Based on this information, the Polish court made a decision within oral proceedings stating the defendant’s obligation to pay maintenance towards the applicant. This decision was declared enforceable by a German court. The defendant appealed against this decision. The German Federal Supreme Court held that the judgment could not be declared enforceable as there was a violation of public policy within the meaning of Art 34 no. 1 Brussels I Regulation. It first stated that the declaration of enforceability depended on a decision on the status if this decision originally constitutes the relationship between child and parent as the ground of the maintenance obligation. In this case, the enforceability can – according to the Court – not be granted if the decision on the status itself violates the procedural ordre public. The question of descent could further only be examined in view of particularly serious violation of public policy. In the present case the Polish court based its decision on information that had been obtained from hearsay in the shape of a blanket statement by the grandmother instead of getting an expert opinion on the issue of the fatherhood. The father was put into a passive role and had no possibility to contribute actively to the process even though he had explicitly claimed a clarification by an expert. The mother herself did not make any contributions to the question of the descent. In this regard, the present case differed substantially to previously decided cases where the statement of the mother could be taken into consideration as evidence. Therefore the court denied the enforceability of the Polish judgment.