Enforcement of Preliminary Injunctions in Another EU Member State
By Dr Christian Dittert, LUTZ | ABEL Rechtsanwalts PartG mbB
In urgent matters, civil procedural law allows for preliminary injunctions. It is a peculiarity of German law that a preliminary injunction must be formally served on the opposing party. Such formal service of documents at the instigation of a party can be mainly affected either by instruction of a courtappointed enforcement offcer to serve the documents or by formal service from one attorney on another attorney (the latter only if both parties are represented by attorneys). It is important that, according to Sec. 929 Para. 2 ZPO, such formal service must be duly performed within a month after the preliminary court decision has been issued. Without service in time, the opposing party is entitled to bring a motion to set aside the preliminary injunction.
On 04 October 2018, the European Court of Justice (ECJ) gave a judgment in re C379/17 – Società Immobiliare Al Bosco Srl. The ECJ decided that EU law did not preclude the application of the aforementioned time limit pursuant to Sec. 929 Para. 2 ZPO on a preliminary injunction issued by an Italian court and enforced in Germany.
It is obvious that it presents an enormous challenge to any claimant to meet, in only one month, all the formal requirements to formally serve a foreign court decision on the opposing party in another member state. In the ECJ case, the claimant had failed to duly serve the preliminary injunction to the defendant within that time frame.
The simple conclusion is: “Equal enforcement law for everybody in the enforcement state.”
The ECJ judgment was based on Art. 38 of Council Regulation (EC) No 44/2001. The question is whether the decision can be applied to the new law under Council Regulation (EU) No. 1215/2012 mutatis mutandis. At this point, nothing indicates otherwise. Under the assumption of the applicability, the next question is from what date the time limit of one month must be calculated, as there is no declaration of enforceability of foreign judgments under the new law anymore. It would stand to reason that the decisive date is the date of receipt of all necessary enforcement documents by the claimant, according to Art. 42 Council Regulation (EU) No. 1215/2012 (provided that all necessary applications for the required documents have been made to the competent authorities without undue delay).
Dr Christian DittertGGI member firm
LUTZ | ABEL Rechtsanwalts PartG mbB
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LUTZ | ABEL Rechtsanwalts PartG mbB is a law firm with offices in Munich, Stuttgart and Hamburg. More than 60 lawyers offer comprehensive services in all areas of business law.
Dr Christian Dittert is a Partner of the firm. He specialises in corporate litigation with a particular focus on shareholder disputes.
Published: Litigation & Dispute Resolution Newsletter, No. 11, Autumn 2019 l Photo: Vlada Z - stock.adobe.com