German Federal Supreme Court: Adversary Proceedings in the State of Origin necessary for Recognition under Brussels I Regulation
In its decision of 21 December 2006 (IX ZB 150/05) the German Federal Supreme Court held that provisional measures can only be recognised and enforced under the Brussels I Regulation if the judicial decision was the subject of an inquiry in adversary proceedings in the State of origin and thus declared the ECJ's case law (Denilauler) on the Brussels Convention to be applicable also with regard to the Brussels Regulation.
In the present case, the Federal Supreme Court had to deal with a Swedish order of attachment which had been declared enforceable in Germany even though the debtor had neither been heard nor been served with the document instituting the proceedings. The decision on the application for a declaration of enforceability has been appealed by the debtor according to Art. 43 Brussels I Regulation. However, the German appellate court, the Higher Regional Court Schleswig, dismissed the appeal by arguing that also provisional measures had to be recognised under the Brussels I Regulation and that the Denilauler judgment of the ECJ on Artt. 25, 27, 46 No. 2 Brussels Convention was not applicable with regard to Artt. 32 et seq. Brussels I Regulation. The appellate court argued, the fact that the European legislator did maintain the broad wording of the former Art. 25 Brussels Convention in Art. 32 Brussels I Regulation showed that the legislator did not aim to adhere to the ECJ's decision in Denilauler – otherwise provisional measures would have been excluded from Artt. 32 et seq. Brussels I Regulation.
This reasoning has been rejected by the Federal Supreme Court. The Court pointed out that provisional measures do – in general – fall within the scope of Art. 32 Brussels I Regulation. However, this was only the case if the judicial decision was subject of an adversary proceeding in the State of origin – which had been held by the ECJ in Denilauler. This could – under the Brussels Convention – be derived from Art. 27 no. 2, Art. 46 no. 2 and results now from Art. 34 no. 2 Brussels I Regulation (which corresponds to the former Art. 27 no. 2 Brussels Convention) as well as Art. 54 (in conjunction with Annex V) Brussels I Regulation.
Since the relevant provisions of the Brussels I Regulation correspond to the ones of the Convention, the ECJ's findings in Denilauler could be transferred to Artt. 32, 34 no. 2 Brussels I Regulation. Thus, provisional measures cannot be recognised and enforced under the Brussels I Regulation if the debtor has not been granted the right to be heard.
Thanks for this very interesting post.
To my knowledge, the German Federal Court is the third European supreme court to accept that foreign interim measures can be enforced abroad if they meet the requirements laid down by the ECJ in Denilauler. The first one was the Swiss Federal court in 2003 (BGE 129, III, 626, Motorola Credit Corporation). ), and the second one was the French Cour de cassation in 2004 (Cass. 1re civ., 30 juin 2004, Stolzenberg, Rev. crit. DIP 2004, p.815, JDI 2005, p. 112).
Best,
Gilles Cuniberti
Thanks for your comment!
Of particular significance in the German case was, that the court of first instance (LG Lübeck) declared the Swedish order of attachment enforceable even before the period for appeal had expired in the first country (Sweden). I.e. the German first instance court declared the Swedish order of attachment enforceable in spite of the fact that the debtor had not been heard in the Swedish proceedings covering attachment and despite the debtor had filed an appeal in Sweden in due time and the Swedish court had obviously not yet decided on the appeal until this point in time. This seems to be clearly contradictory to Art. 34 (2) Brussels I Regulation which is “intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised” as it has been held by the ECJ (with regard to Art. 27 (2) of the Convention) for instance in Peter Klomps v. Karl Michel, C-166/80 (para. 9).
Considering this, it sounds rather astonishing that the German court of second instance (OLG Schleswig), which affirmed the decision of the lower court, sets forth in its reasoning that it was sufficient if the right to be heard was granted ex post by filing an appeal.
Best,
Veronika Gaertner
I guess that, indeed, what the Denilauler Court had in mind as far as the right to be heard is concerned was an opportunity given prior to the first decision.
Now, from an English point of view, this raises the issue of the compatibility with this ruling of the English practice of granting an ex parte order summoning the defendant to London where, a few days later, another order will be made. I understand that this second order would not be ex parte, but that the defendants would have to appear before the court under the first order, which was issued ex parte. Does the second order really comply with Denilauler?
On another note, did the German courts address the issue of the effect that the foreign interim measure could prod$uce in Germany? In other words, did any of the Courts rule on whether the Swedish order would turn into a German order as far as assets situaed in Germany are concerned, or whether it would be enforced in Germany as a Swedish order by all means?
Gilles
Thanks for your answer!
Concerning your first question, the compatibility of the English pratice as described by you with the ECJ Denilauler case law, I have to admit first that I am not very familiar with English procedural law.
However, if I understood your question correctly, I would say that there are two different aspects which might be distinguished.
First, one could ask whether this example complies with the standards established by the ECJ in Denilauler and thus whether the second order constitutes a “judgment” in terms of Articles 32 et seq. Brussels I at all.
In this respect, I would say that the crucial question is whether the decision to be recognised and to be enforced – and therefore in your example the second order – does comply with the principles established in Denilauler. If the defendant has been summoned and the second order has actually been ordered not ex parte, I would suppose that this would comply with the principles established in Denilauler. As the ECJ has held, the Brussels Convention (and now, as pointed out by the German Federal Supreme Court, the Brussels Regulation) “is fundamentally concerned with judicial decisions which, before the recognition and enforcement of them are sought in a State other than the State of origin, have been or have been capable of being, the subject in that State of origin and under various procedures, of an inquiry in adversary proceedings” and that “the conditions imposed by Title III of the [Brussels] Convention [now the Regulation] are not fulfilled in the case of provisional or protective measures which are ordered or authorized by a court without the party against whom they are directed having been summond to appear […]”.
If, as in your example, the second order has been issued after summoning and hearing the defendant, I would assume that this is sufficient to comply with the standards elaborated by the ECJ since then there have been “adversary proceedings”. In this respect I would not base the argumentation on the question whether the summoning has been ordered ex parte (since there has been a summoning and the mere presence of a summoning is, if I understood it correctly, sufficient), but would rather focus on the second order since this is the one which shall be recognised and enforced abroad.
However, in a second step one could question whether the fact that the summoning has been ordered ex parte constitutes a ground for non-recognition in terms of Article 34 (2) Brussels I, since if the defendant had not been summoned early enough or in a way to enable him to appear in court and to arrange a proper defense, this could amount to an infringement of the right to a fair trial. However, I am not sure whether the fact that the writ of summons is ordered ex parte would lead to an infringement of Article 34 (2) Brussels I since I suppose it is the document instituting the proceedings, i.e. in England I assume the writ of summons, by means of which the defendant gains knowledge of the proceedings for the first time.
To summarise it shortly, I would say that the question whether the second order has been issued ex parte or not, touches first of all upon the question whether the prerequisites of a “judgment” in terms of Articles 32 et seq. Brussels I are fulfilled at all, while the manner, and in particular the timeliness, of the summoning concerns the question whether the requirements for a non-recognition according to Article 34 (2) Brussels I are met.
With regard to your second question, the effects of the Swedish order in Germany, I can tell you that the courts did not address this question in this case. However, on an abstract level, I suppose the enforcement of a foreign decision does not only lead – as the recognition – to an extension of the decision’s effects to the second State, but rather to an equalisation of the foreign title to a national one. Thus, the executory title is not the foreign title, but rather the declaration of enforceability issued in the enforcement State. The foreign title has to be enforced according to the national rules of enforcement.
This equalisation leads in turn to the result that a foreign decision is limited by the national law of the enforcement State, i.e. a foreign title cannot have more effects than a national title.
Best,
Veronika