PIL instrument(s)

Case number and/or case name

AG Augsburg, 27.1.2012 – 1 M 10281/12

ECLI

ECLI:DE:AGAUGSB:2012:0127.1M10281.12.0A

Publication in law review

IPRax 2013, 269-270; IPRspr 2012, Nr. 285, 654-656; DGVZ 2012, 83

Link to original version

Details of the court

Germany, First Instance

Articles referred to by the court

Date of the judgement

27 January 2012

Appeal history

CJEU's case law cited by the court

Summary

The creditor seeks foreclosure against the debtor on the basis of an Austrian default judgment of the District Court for Commercial Matters Vienna. At the request of the creditor, the Austrian court certified the default judgment as a European Enforcement Order. An attempt to seize the debtor’s property was unsuccessful, which is why the bailiff determined a date for the delivery of the affidavit. The debtor did not appear on this date. The creditor subsequently filed an application for an arrest warrant. The application for an arrest warrant of 1.12.2011 is rejected because so far there was no proof that the default judgment of the District Court for Commercial Matters Vienna of 11.7.2006 has been served on the debtor (§ 750 I ZPO). A title according to the EEO was also in view of § 750 ZPO equal to a title obtained in accordance with German regulations. The applicability of § 750(1) ZPO was confirmed by Art. 20(1) EEO, which states: ‘Without prejudice to the provisions of this Chapter, the enforcement procedures shall be governed by the law of the Member State of enforcement. A judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement.’ It could not be inferred from Art. 21(2) EEO that the service of the European Enforcement Order under national law should not be a foreclosure requirement.