PIL instrument(s)
European Payment Order (EPO)
Case number and/or case name
AG Berlin-Wedding, 13.04.2017 – 70b C 5/17
Publication in law review
BeckRS 2017, 108418
Details of the court
Germany, First Instance
Articles referred to by the court
European Payment Order (EPO)
Article 11
Paragraph 1 SubParagraph a
Paragraph 1 SubParagraph b
Paragraph 2
Paragraph 3
Paragraph 4
Paragraph 1 SubParagraph c
Paragraph 1 SubParagraph d
Article 2
Paragraph 1
Paragraph 2 SubParagraph a
Paragraph 2 SubParagraph b
Paragraph 2 SubParagraph c
Paragraph 2 SubParagraph d
Paragraph 2 SubParagraph e
Paragraph 2 SubParagraph f
Paragraph 2 SubParagraph g
Paragraph 3
Paragraph 4
Paragraph 5
Paragraph 6
Paragraph 2 SubParagraph d Indent i
Paragraph 2 SubParagraph d Indent ii
Date of the judgement
13 April 2017
Appeal history
CJEU's case law cited by the court
* Name
EuGH, 20.01.2005 - C-27/02; 14.05.2009 - C-180/06; 22.03.1983 - 34/82
ECLI:EU:C:2005:33; ECLI:EU:C:2009:303; ECLI:EU:C:1983:87
The applicant demands the issue of a European order for payment. She states that she is a copyright collective that has entered into a copyright understanding agreement with the defendant. Assuming a contractual obligation, the applicant distributed the amount for the year 2014 claimed in this case to the defendant. In fact, such an obligation did not exist for 2014. Thus, the distribution was made without legal grounds. The application was dismissed on the basis that this was a claim of unjust enrichment and thus a non-contractual claim, which did not fall under the scope of the EPO. The applicant has raised a complaint (Rechtspflegererinnerung) against this decision. The senior judicial officer has not remedied this complaint. The applicant wants to take action against this decision. The court decides that the opposition is justified on basis of the following considerations: A complaint (Erinnerung) according to § 11(2) RPflG was in spite of Art. 11(2) EPO, also applicable in the case of rejection of the issuing of a European order for payment in accordance with Art. 11(1) EPO. This ensued from recital 17 EPO as well as the rule of law and the guarantee of access to the courts (Art. 19(4) GG). In the case of a payment under an effective contract, where only at the time of payment the conditions for the actual payment transaction had been missing (for example, because of the erroneous assumption that the actual conditions existed for further disbursement), this was not a payment on a non-existent contract. Thus, this constellation could not be considered as "arising from non-contractual obligations" according to Art. 2(2) lit. d EPO. The Regulation was therefore applicable.

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