Case number and/or case name
AG Berlin-Wedding, 17.2.2017 – 70b C 52/16
The applicant made an application for a European order for payment at the AG Wedding against the defendant on the basis of four different positions. The applicant explained the court’s jurisdiction with code 12 = jurisdiction clause. The court has issued the order for payment and served it to the defendant. The defendant has applied for a review of the European order for payment. The order for payment was to be declared null and void because it was obtained by the applicant by deception over alleged existing jurisdiction clauses in favour of a German court and therefore was clearly wrongly issued within the meaning of Art. 20(2) EPO. A jurisdiction clause did not exist under any conceivable point of view. The terms and conditions referred to had never been included in the contract. It was evident that a jurisdiction clause regarding the claim to 3 was not made. Also with regard to the remaining claims no jurisdiction clause was effectively agreed upon. The corresponding general terms and conditions had never been sent to the respondent. In addition, the respondent had not accepted an originally envisaged cooperation agreement. Only at the end of the orders, it was indicated that the current terms and conditions would apply and that these would be available on the internet. In the scope of the CISG, such a notice was not sufficient. The applicant’s representative could hardly have made a corresponding error. She had at least approved that a jurisdiction clause was in fact not effective and enforceable by the court. Therefore, she had deliberately deceived the court. The sole director of the defendant, even after consulting the defendant's lawyer, did not see any reason to engage in the German proceedings with any further procedural consequences, because he was confident that a German court was not competent for claims against the defendant. Instead, he assumed that everything was only the applicant’s means of exerting pressure. Only due to the foreclosure in Romania, the defendant had become aware that the order for payment could be enforced despite lack of jurisdiction. In a case of obvious abuse, the defendant could not be accused of not having objected to the claim. Because of the deliberate abuse of procedure in relation to the claim to 3, the entire order for payment should be declared null and void.
The application for review is admissible but unfounded. The respondent could not refer to a review pursuant to Art. 20(2) EPO. A review according to this rule was only possible ‘where the order for payment was clearly wrongly issued, having regard to the requirements laid down in this Regulation, or due to other exceptional circumstances.’ According to the CJEU, this was not the case if ‘the court of origin incorrectly held that it had jurisdiction on the basis of allegedly false information provided by the claimant in the application form.’ That was the case here. Insofar as the defendant was of the opinion that such a jurisdiction clause had not been effective or had not been agreed at all, he could have stated this within the objection pursuant to Art. 16 EPO. Thus, it was irrelevant whether the information provided by the applicant in the present case had been wrong. In particular, it could be left unanswered whether the jurisdiction clause in the general terms and conditions invoked by the applicant was effective, in particular taking into account the CISG rules. Thus, the question of whether an ineffectiveness of the order for payment in relation to the claim to 3 causes the ineffectiveness of the entire order for payment was not raised here. It might be left undecided whether a review would still be possible if jurisdiction rules have been violated in an obvious way. In the present case, it was not evident that the claimant misused the European order for payment procedure ‘for the purpose of fraud.’