• Temat numeru
  • Artykuł pochodzi z numeru IUSTITIA 2(12)/2013, dodano 9 sierpnia 2013.

Artykuł 11355 § 2 KPC a możliwość odmowy uznania polskiego orzeczenia ze względu na naruszenie niemieckiego porządku publicznego – glosa

Marcin Margoński LL.M
(inne teksty tego autora)

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SUMMARY

 

Article 11355 § 2 of the Polish Code of Civil Procedure and possible refusal to recognize a Polish verdict
due to infringement of German public order – a gloss

The gloss refers to the decision of the German Federal Court of Justice (Bundesgerichtshof) of 14 June 2012 (IX ZB 183).The Court analysed therein the impact of a Polish court’s assuming fictitious service by default since in the course of the proceedings the party domiciled in another EU Member State failed to designate an agency for deliveries in Poland on future possible refusal to recognise the verdict in Germany due to infringement of German public order (art. 34.1 of Regulation 44/2001).The fiction arising from Art. 11355 § 2 of the Polish Code of Civil Procedure consists in leaving a document addressed to a party in the case file as if it has been delivered.However, the first brief is delivered to the foreign party with an instruction that it is obligatory to designate an agency for deliveries in Poland and outlining the consequences of a failure to do so. The German Federal Court of Justice was right to assume that from the viewpoint of the seriousness of the violation of the right to trial which might justify refusal to recognize a verdict passed in another Member State pursuant to Art. 34.1 of Regulation 44/2001, there were no grounds for refusal to recognize enforceability of a Polish payment order in Germany. An important statement made by the Court was refusal to evaluate compliance of the service by default mechanism laid down in Art. 11355 § 2 of the Polish Code of Civil Procedure with EU law.The Court rightly assumed that the prohibition to make substantive re-assessment in the proceedings on recognition of enforceability causes that compliance of the applied service mechanism with the law (including EU law) is subject to assessment in the course of the original examination proceedings.

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