- Court of Justice - C-379/17 – 4th of October 2018 -
In the ‘Società Immobiliare Al Bosco Srl’ judgment of the 4th of October 2018 the Court of Justice further defined the interpretation of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This regulation provides the '"free movement of judgments in civil and commercial matters".
1.- The facts.
The present case concerned an Italian real estate company 'Al Bosco', which on the 19th of November 2013 obtained an order from the 'Tribunale di Gorizia' for the preservation of its debtor 'Hober' for an amount of EUR 1,000,000.
In 2014, this order was subsequently declared enforceable in Germany by the ‘Landsgericht München’ in accordance with Regulation 44/2001.
It was not until 23 April 2015 that 'Al Bosco' effectively implemented the attachment order by registering a mortgage on 'Hober’s’ real estate located in Germany.
However, this registration was later on refused by the ‘Ambtsgericht München’ on the basis of Article § 929 (2).2 of the Zivilprozessordnung, which stipulates that the execution of a preservation order must take place within one month after obtaining the attachment order. Waiting too long results therefore under German law in an unlawful precautionary measure.
2.- The Court of Justice.
The question was referred to the Court of Justice as to whether Regulation No 44/2001 does not preclude such application of national law, which results in a precautionary order granted in another Member State being declared unlawful.
The Court of Justice ruled on 4 October 2018 that the Regulation does not preclude the application of these national rules, since Regulation 44/2001 only ensures that foreign judgments have the authority and effect which they enjoy in the Member State in which the judgment was given, but does not regulate the way in which the order is enforced.
The German authorities have thus acted in accordance with Regulation No 44/2001, since the Italian preservation order has been declared enforceable in the addressed Member State. The applicant must therefore always consider that Member States may indeed make subject the execution of such an order to national formalities.
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