Proceedings brought by Società Immobiliare Al Bosco Srl.

• Jurisdiction: European Union
• Celex Number: 62017CJ0379
• ECLI: ECLI:EU:C:2018:806
• Date: 04 October 2018
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-379/17

Provisional text

JUDGMENT OF THE COURT (Second Chamber)

4 October 2018 (*)

(Reference for a preliminary ruling — Judicial co-operation in civil matters — Regulation (EC) No 44/2001 — Recognition and enforcement of decisions in civil and commercial matters — Time limit laid down in the law of the Member State addressed for enforcing a preventive attachment order — Applicability of that time limit to a preventive attachment instrument obtained in another Member State and declared enforceable in the Member State in which enforcement is sought)

In Case C‑379/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 11 May 2017, received at the Court on 26 June 2017, in the proceedings brought by

Società Immobiliare Al Bosco Srl

THE COURT (Second Chamber),

composed of M. Ilešič, President of the Chamber, A. Rosas, C. Toader (Rapporteur), A. Prechal and E. Jarašiūnas, Judges,

Advocate General: M. Szpunar,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 11 April 2018,

after considering the observations submitted on behalf of:

– the German Government, by T. Henze, J. Techert and M. Hellmann, acting as Agents,

– the European Commission, by M. Heller and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 June 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 38(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

2 The request has been made in proceedings brought by Società Immobiliare Al Bosco Srl (‘Al Bosco’) seeking the enforcement in Germany, by registration of a debt-securing mortgage against real property, of a preventive attachment order issued by the Tribunale di Gorizia (District Court, Gorizia, Italy) against Mr Gunter Hober and declared enforceable in Germany by the Landgericht München (Regional Court, Munich, Germany).

Legal context

European Union law

3 Recitals 2, 6, 10, 16 and 17 of Regulation No 44/2001 are worded as follows:

‘(2) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.

…

(6) In order to attain the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a Community legal instrument which is binding and directly applicable.

...

(10) For the purposes of the free movement of judgments, judgments given in a Member State bound by this Regulation should be recognised and enforced in another Member State bound by this Regulation ...

...

(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.

(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.’

4 Article 38(1) of Regulation No 44/2001 provides:

‘A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.’

5 Article 41 of that regulation provides:

‘The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.’

6 Under Article 66(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1), which repealed Regulation No 44/2001:

‘... Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation.’

German law

7 Paragraph 929 of the Zivilprozessordnung (Civil Procedure Code; ‘the ZPO’), headed ‘Order for enforcement; time limit for enforcement’, is part of Section 5, on preventive attachments and precautionary measures, of Book 8 of the ZPO, on enforcement measures. Subparagraphs 2 and 3 of that provision state the following:

‘(2) Enforcement of the attachment order shall not be permitted if one month has elapsed since the date on which the order was issued or on which it was served on the requesting party.

(3) Enforcement before the order has been served on the debtor shall be permitted. However, it shall be ineffective if service is not effected within one week of the enforcement and prior to the expiry of the period specified for this purpose in the preceding subparagraph.’

8 Under Paragraph 932 of the ZPO, headed ‘Attachment by registration of a mortgage’:

‘(1) Enforcement of an attachment order against real property ... shall be effected by registering a debt-securing mortgage in respect of the debt …

…

(3) For the purposes of Paragraph 929(2) and (3), the application to register the mortgage shall be regarded as the enforcement of the attachment order.’

The dispute in the main proceedings and the question referred for a preliminary ruling

9 On 19 November 2013, Al Bosco, a property company established under Italian law, obtained from the Tribunale di Gorizia (District Court, Gorizia, Italy) a preventive attachment order authorising it to obtain preventive attachment in a maximum amount of EUR 1 million against the debtor’s movable and immovable, tangible and intangible assets.

10 On 22 August 2014, that preventive attachment order was declared enforceable in Germany by the Landgericht München (Regional Court, Munich) pursuant to Regulation No 44/2001.

11 On 23 April 2015, Al Bosco applied for the registration of a mortgage against the debtor’s real property located in Germany, namely a residential apartment and two underground parking spaces. Its application was rejected by the Amtsgericht München — Grundbuchamt (Land Registry attached to the Local Court, Munich, Germany).

12 Al Bosco challenged the decision of that court before the Oberlandesgericht München (Higher Regional Court, Munich, Germany). The latter court dismissed the action on the ground that the time limit of one month, laid down in Paragraph 929(2) of the ZPO, had expired. It considered that that time limit applies to the enforcement of the preventive attachment instrument issued by an...