Judgment of the Court of Justice Fourth Chamber, 16 February 2023, Lufthansa Technik AERO Alzey GmbH, C-393/21

• Date: 16 February 2023
• Year: 2023

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II. JUDICIAL COOPERATION IN CIVIL MATTERS:

REGULATION NO 805/2004 CREATING A EUROPEAN ENFORCEMENT ORDER

FOR UNCONTESTED CLAIMS

Judgment of the Court of Justice (Fourth Chamber), 16 February 2023, Lufthansa Technik

AERO Alzey GmbH, C-393/21

Link to the full text of the judgment

Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Regulation (EC)

No 805/2004 – European Enforcement Order for uncontested claims – Article 23(c) – Stay of enforcement

of a judgment certified as a European Enforcement Order – Exceptional circumstances – Concept

On 14 June 2019, the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany) served on Arik Air Limited

an order for payment with a view to recovering a debt of EUR 2 292 993.32 owed to Lufthansa Technik

AERO Alzey GmbH (‘Lufthansa’). Then, on 24 October 2019, it issued a European Enforcement Order

and, on 2 December 2019, a European Enforcement Order certificate.

A bailiff operating in Lithuania was instructed by Lufthansa to carry out the European Enforcement

Order in respect of Arik Air.

The latter company made an application

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before the Landgericht Frankfurt am Main (Regional Court,

Frankfurt am Main, Germany) for the withdrawal of the European Enforcement Order and the

termination of the compulsory recovery of the debt. In its view, the procedural documents had been

served improperly by the Local Court, Hünfeld, which had led to a failure to comply with the time limit

available to it for objecting to the order for payment at issue.

In Lithuania, Arik Air also requested the bailiff to have the enforcement proceedings stayed until the

Regional Court, Frankfurt am Main, has given a final ruling, which the bailiff refused to do, taking the

view that the national legislation did not allow for such a stay in those circumstances.

By order of April 2020, the Regional Court, Frankfurt am Main, considering, inter alia, that Arik Air had

failed to demonstrate that the European Enforcement Order had been issued improperly, made the

suspension of the compulsory execution of the order concerned conditional on the provision of a

security of EUR 2 000 000.

By order adopted in June 2020, the Kauno apylinkės teismas (District Court, Kaunas, Lithuania)

dismissed the action brought by Arik Air against the bailiff’s decision refusing to stay those

enforcement proceedings.

On appeal, the Kauno apygardos teismas (Regional Court, Kaunas, Lithuania) set aside that order,

staying the enforcement proceedings at issue pending the final ruling of the German court on Arik

Air’s claims. That court took the view that, given the risk of disproportionate harm liable to arise from

the enforcement proceedings against Arik Air, the bringing of an action against the European

Enforcement Order certificate before the court of the Member State of origin was a sufficient basis for

staying those proceedings. It also found that there was no reason to consider that it was for Regional

Court, Frankfurt am Main to decide on the merits of the request for the enforcement measures to be

stayed.

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That application was made on the basis of Article 10 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of

21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15).