Background
Thüringer Aufbaubank, a German bank, sought enforcement in Austria of a notarial instrument created in Germany on 28 May 1999 concerning a claim for EUR 25,000 plus interest secured by a charge over immoveable property. On 19 January 2021, the competent German authorities issued a European Enforcement Order (EEO) certificate for this instrument using the standard form required by Regulation (EC) No 805/2004. The Austrian courts questioned whether this certification was valid, noting that the original notarial instrument predated the regulation’s entry into force by nearly six years.
The Austrian Regional Court (Landesgericht Leoben) annulled the enforcement order, reasoning that Article 26 of Regulation 805/2004 limits the regulation’s application only to authentic instruments “formally drawn up or registered after the entry into force of this Regulation” (21 January 2005). Since the 1999 notarial instrument fell outside this temporal scope, the court concluded it should not have been certified as an EEO and that the certification could be reviewed in the enforcement state.
Thüringer Aufbaubank appealed to the Austrian Supreme Court (Oberster Gerichtshof), which referred the question to the Court of Justice of the European Union. The Supreme Court sought guidance on whether enforcement-state courts could review compliance with Article 26’s temporal requirements when the origin state had issued a clearly improper EEO certificate.
The Court’s Holding
The CJEU held definitively that Article 21(2) of Regulation 805/2004, read with Article 25, precludes any substantive review of an EEO certification in the enforcement state, even when the original instrument was not formally drawn up after the regulation’s entry into force. The Court emphasized that Article 26’s temporal scope requirement is a material eligibility criterion for EEO certification, and thus a certification that disregards it is “wrongly granted” within the meaning of Article 10(1)(b).
However, the Court clarified the allocation of jurisdiction: because Regulation 805/2004 establishes a fundamental division of powers between origin and enforcement states, only the origin state’s courts may review the legal accuracy of the certification decision. The enforcement state courts cannot perform a “review as to substance” of whether the origin state correctly applied the regulation’s requirements. This allocation exists to protect the free circulation of enforcement orders and is grounded in mutual trust between Member States’ judiciaries.
The Court provided compensating procedural protections: a party opposing enforcement may lodge an application for withdrawal of the wrongly granted certificate in the origin state under Article 10(1)(b), and may seek a stay of enforcement in the enforcement state under Article 23(c) if pursuing that withdrawal. These mechanisms ensure respect for the rights of the defence while preserving the regulation’s core objective of avoiding duplication and delay in enforcement.
Key Takeaways
- Enforcement-state courts cannot conduct substantive review of EEO certifications, regardless of whether the origin state manifestly breached temporal or other eligibility requirements under the regulation.
- The prohibition on substantive review applies even when an authentic instrument predates the regulation and was wrongfully certified as an EEO.
- Regulation 805/2004’s temporal scope (Article 26) is a material requirement; instruments drawn up before 21 January 2005 are ineligible for EEO certification.
- The exclusive remedy for an improperly granted EEO certificate lies in the origin state, via Article 10 withdrawal proceedings, not in the enforcement state.
- Enforcement-state courts retain discretion to stay or limit enforcement under Article 23 when a debtor pursues withdrawal in the origin state and establishes exceptional circumstances.
Why It Matters
This judgment solidifies the structural principle that underpins the European Enforcement Order regime: the origin state controls the legal correctness of certification, and the enforcement state’s role is limited to executing that certification. By foreclosing even manifest-error review in enforcement proceedings, the Court prioritizes the regulation’s efficiency objectives—eliminating intermediate proceedings, accelerating enforcement, and reducing burdens on cross-border creditors—while relying on mutual trust in Member States’ legal systems and on the availability of withdrawal mechanisms to protect debtors.
The ruling has profound implications for practitioners. A creditor holding an EEO certificate, even if granted in disregard of material requirements, can enforce in other Member States without fear of substantive challenge. Conversely, a debtor facing such an improper certificate has no option to contest it in the enforcement state; the debtor must travel back to the origin state to seek withdrawal. This allocation may seem harsh in cases of clear temporal violations, but it reflects the Court’s view that the regulation’s objectives—uniform treatment across the EU and simplified enforcement—outweigh the inconvenience of requiring origin-state proceedings to correct the origin state’s own errors. The decision reinforces that Regulation 805/2004 is a “trust” instrument that depends on the good-faith compliance and oversight of origin-state courts.