IC2BE AG Berlin-Wedding, 20.10.2017

Summary

The parties dispute as to whether a European order for payment issued by the applicant should be annulled. The applicant is an insurance company based in Germany and the defendant is a UK based reinsurance company. The applicant is the policyholder of the defendant. The applicant has applied for a European order for payment against the defendant. The AG Wedding has issued the order for payment and served it to the defendant. Two months later, the AG has declared the order for payment enforceable. As a result, the defendant has lodged an objection to the enforcement order according to Art. 20(1) lit. b and (2) alt. 2 EPO. She justifies the claim by stating that the AG Wedding had no international jurisdiction for issuing the orders for payment. She contests that there were jurisdiction clauses. In addition, the defendant could not have filed an objection because she was "simply prevented from lodging an objection". The claims had not been identifiable because, given the large number of individual claims, at least an assignment to a specific insurance contract and to an insurance period would have been necessary. The applicant had also disguised the justification of the claims. Collective amounts had been claimed instead of specific individual claims. Those circumstances had been given particular dynamism by the fact that the applicant pointed out those circumstances to the defendant and that an opposition had been announced. However, this objection had been abandoned because of the special relationship of trust between the insurance and reinsurance companies. After the opposition period had expired, the defendant had taken immediate action. The orders for payment had also been wrongly issued. The asserted claims had been incomprehensible. The application for review is admissible but unfounded. The defendant could not refer to circumstances pursuant to Art. 20(1) lit. b EPO nor to circumstances pursuant to Art. 20(2) EPO. Extraordinary circumstances within the meaning of Art. 20(1) lit. b EPO were not apparent in the present case. According to the CJEU, extraordinary circumstances could not be assumed if they could have easily been avoided. Contrary to the defendant's view, she had not been prevented from objecting. Almost all circumstances, which from the defendant’s point of view now contradicted the order for payment, had already been apparent from the order for payment; in particular: the lack of identifiability of the claim in the defendant's opinion, the assertion of a collective amount instead of individual claims and the standing to challenge that the claimant did not demonstrate in the defendant’s view. Exceptional circumstances also did not arise from the applicant’s or its agents’ behaviour. The defendant did not state that the applicant had created the impression that it would not be necessary to lodge an objection. In particular, it was not apparent that the applicant had actively created the impression that they would in any case agree out-of-court. Since there were no extraordinary circumstances, it remained to be seen whether the non-filing of the opposition was caused by the defendant. Moreover, it could be left open whether the defendant lodged the application without delay. Furthermore, it was not apparent that the payment order according to Article 20(2) EPO was clearly wrongly issued, having regard to the requirements laid down in this Regulation, or due to other exceptional circumstances.’ In any event, 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.’ For the defendant could have asserted this in the context of an opposition, which was not done in due time. Therefore, the other reasons stated by the defendant were not relevant here. Finally, it was not evident that the applicant intentionally abused the order for payment procedure in the present case.