IC2BE AG Berlin-Wedding, 31.03.2017

Summary

The claimant applied for a European order for payment against the Hellenic Republic. The subject of the proceedings are claims for Greek government bonds. The senior judicial officer rejected the application with reference to the fact that it concerns a sovereign act of the Hellenic Republic to which the EPO is not applicable. The claimant raised a complaint (sofortige Erinnerung) against the decision with receipt by the court in time. The complaint is rejected as the application for the European order for payment was admissible but unfounded. The court has so far assumed that generally, no appeal is possible against the rejection of the application for reminder but now it surrenders this previous position. Recital 17 of the Regulation contained an opening clause, which stated that, in spite of Art. 11(2) EPO, review of the decision rejecting a decision in the same instance should not be ruled out in accordance with national law. This case was given in German civil procedure law. Art. 11(2) RPflG (in conjunction with Art. 26 EPO) contained a provision specifically tailored to procedural situations such as this one, namely a ruling of the senior judicial officer, which could not be appealed under the general procedural rules. The Rechtspflegergesetz (here: in §§ 3 No. 3, 20(1) No. 7) transferred decisions to the senior judicial officer that are of genuine judicial nature. It was therefore governed by the rule of law and within the framework of the guarantee of access to the courts (Art. 19(4) GG) that it must be possible to have the ruling of the senior judicial officer reviewed by a judge. The issue of a corresponding title, however, was denied to the court from the outset, because this would violate the principle of state immunity as a general rule of international law.