IC2BE LG München II, 19.1.2010

Summary

The creditor applies for foreclosure against the debtor on the basis of a claim titled in Italy. For that purpose, the creditor sent a copy of the judicial decision of the Tribunale di Treviso to the bailiff in Fürstenfeldbruck, with translation into German, as well as a copy of the Italian language certification of the abovementioned decision as a European Enforcement Order. By letter to the AG Fürstenfeldbruck, the debtor requested that the foreclosure be terminated since their conditions were not fulfilled. The enforcement court rejected the request, which was filed as a complaint (Erinnerung). The creditor’s representatives lodged an appeal with this court against this decision. The complaint had limited success only; the enforcement of interest was declared inadmissible. The enforcement court legitimately pointed out that a translation of the certificate into German as the official language according to Art. 20(2) lit. c EEO was not required, because filling out of the prescribed, internationally identical form for the certification had been sufficient already. It was the standard form in Annex I in accordance with Art. 9(1) EEO, which had to be completed in Italian in accordance with paragraph 2. The form was completed in a way that only information on the individual headings was provided without any additional information. It was irrelevant here whether the persons acting for the debtor were Italian-speaking. On the contrary, it depended on whether it was possible to determine by means of comparison with the headings of the form in German, even without translation, which claim was to be enforced. This was the case with regard to the main claim, EUR 44,250, as explained in points 5.1 and 5.1.1. of the certification. With regard to the enforcement of interest sought by the creditor, the debtor's complaint was justified though. Pursuant to Article 20(1) sent. 1 and 2 EEO, the question of the admissibility of foreclosure was governed in principle by German foreclosure law. According to German law, one of the conditions for the enforcement of foreclosure was the existence of a sufficiently well-defined title. According to the case law of the BGH (NJW 2006, 695), a title is only sufficiently determined and suitable for enforcement if it shows the claim of the creditor and designates the content and scope of the obligation to pay. The present decision, which was certified as a European Enforcement Order did not meet these requirements in regard to the claim of interest. For although the interest rate could be calculated on the basis of their content, the interest rate was only defined come per legge and therefore could not be taken directly from the title and cannot be clearly determined by criteria that are all named in the title.