PIL instrument(s)
European Payment Order (EPO)
Case number and/or case name
AG Berlin-Wedding, 10.02.2017 – 70b C 6/17
Publication in law review
BeckRS 2017, 108421
Details of the court
Germany, First Instance
Articles referred to by the court
European Payment Order (EPO)
Article 11
Paragraph 2
Article 2
Paragraph 1
Paragraph 2 SubParagraph a
Paragraph 2 SubParagraph b
Paragraph 2 SubParagraph c
Paragraph 2 SubParagraph d
Paragraph 3
Paragraph 2 SubParagraph d Indent i
Paragraph 2 SubParagraph d Indent ii
Date of the judgement
10 February 2017
Appeal history
CJEU's case law cited by the court
With his application for a European order for payment, the claimant tries to enforce outstanding debts resulting from unjust enrichment during 2013 and 2014. The competent senior judicial officer denied this demand and explained that this application did not fall within the scope of Art. 2 EPO Reg. The claimant then raised a complaint (Erinnerung) and argued that there had been a copyright agreement between both parties since 1993. The claimant had made payments to the adverse party in the assumption that he was bound to do so. As the senior judicial officer reiterated his position, the full court had to decide the case. The court declared the complaint to be admissible because it did not trigger a devolutive effect and was thus compatible with Art. 11(2) EPO Reg. Moreover, the court declared the complaint to be justified: Art. 2(2)(d)(i) EPO Reg. excluded claims arising from non-contractual obligations, unless they had been the subject of an agreement between the parties or there had been an admission of debt. The question whether a claim was to be characterised as arising from non-contractual obligations had to be answered by an autonomous rather than a national interpretation of the regulation. The term “[non-]contractual obligation” might be derived from the interpretation of Art. 7(1)(a) Brussels Ia. In accordance with those criteria, the characterisation of claims as non-contractual relied on the inner context of the intended obligation. It therefore depended on the primary obligation that had been breached or not fulfilled. If this obligation was to be characterised as contractual, Art. 7(1)(a) Brussels Ia would be applicable and not the exception found in Art. 2(2) (d)(i) EPO Reg. In this light, the present claim was to be classified as contractual and fell within the scope of the EPO Reg.

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