IC2BE AG Berlin-Wedding, 24.11.2017

Summary

The applicant seeked issuance of a European order for payment (EOP). At the request of the court, it had been declared that the debtor speaks German. The AG Wedding issued the EOP. Service on the defendant by registered letter with international return receipt initially failed. Subsequently, service was prompted by the foreign authority. The AG Wedding then received two certificates: one was a "certificado", according to which a document was handed over on 25 June 2015, and the other was a "diligencia de comunicación", according to which on 29 June 2015 various documents – in particular a copy of EOP – had been delivered to a "Dña. xxx" as "Represante Legal" of the defendant. In a pleading, the defendant refused to accept the EOP because it was not written in a language that the defendant would understand. The AG Wedding declared the EOP enforceable and justified this by stating that the refusal of acceptance on the part of the defendant had taken place too late. As a result, the defendant has requested a review of the EOP (Art. 20 EPO). The EOP had been served late, so that the refusal of accepting it took place in time. It had not been until the day of the pleading that the Spanish court had notified the defendant that the order had been enforced. Initially, there had only been the notification that the relevant documents could be collected from the court. The handing over of the documents, on the other hand, had only taken place later on. Furthermore, the – German-speaking – xxx was no longer the managing director of the defendant. Ultimately, it was not clear which claim was asserted here. Neither did any of the shareholders or employees of the defendant understand sufficient German to understand the scope of an injunction. All contracts had been signed in Spanish. The application for revocation of the EOP made by the defendant in accordance with § 1092a ZPO is admissible and well-founded. Pursuant to § 1092a(1) sent. 1 no. 2 ZPO, the defendant might request the revocation of the European order for payment if the EOP had not been served to him. It could be assumed that no (effective) service under the Service Regulation took place. According to Art. 8(1) Service Regulation, an addressee might refuse to accept a document or return the document within one week if the document was not written either in the official language of the receiving Member State or in a language, which the addressee understood. The defendant acted accordingly. The EOP was sent within a week because it was to be assumed that the EOP was not delivered to the managing director of the defendant until 29 June 2015. The "certificado" of 25 June 2015 merely showed that something was thrown into the defendant's mailbox. The fact that this had been the EOP was not noted on the "certificado". In view of the explicit judicial certificate on the delivery of the documents on 29 June 2015, only the notification that documents were to be collected from the court had probably been filed on 25 June 2015. Furthermore, the EOP had not been written in Spanish, the official language of the defendant's domicile. In the case of service on legal persons, it was necessary to ascertain whether the document would, in accordance with a reasonable and honest organisation of work, fall into the hands of a manager who was proficient in the language used. In the event of a dispute, the sender of the document bore the burden of proving the recipient's knowledge of the language. The court did not assume that the defendant had sufficient knowledge of German to conduct the present proceedings. Nor was it stated that German had been used as the business language. Since the application was already substantiated pursuant to § 1092a ZPO, it could be left open whether the other application of the defendant according to Art. 20 EPO would also be admissible and well-founded.