Unseizability of Corona emergency aid - Cologne Regional Court (decision of 23.04.2020 Ref. 39 T 57/20)

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According to a decision of the Cologne Regional Court dated April 23, 2020 - Case No. 39 T 57/20, Corona emergency aid is unseizable.

Facts

The underlying proceedings before the Bergisch Gladbach Local Court concerned the revocation of the attachment of a Corona emergency aid in the amount of EUR 9,000.00.

By decision of the Cologne district government, the debtor was granted Corona emergency aid in the amount of EUR 9,000.00 in accordance with § 53 LHO in conjunction with the program for granting emergency aid from the federal program "Corona Emergency Aid for Microenterprises and the Self-Employed" and the supplementary state program "NRW Emergency Aid 2020".

The creditor, a tax advisor, obtained a writ of execution against the debtor in respect of fee claims arising from his work as a tax advisor. The creditor had the debtor's payment claim against the bank seized and transferred for collection.

The debtor applied to the Local Court to lift the attachment on his account in the amount of EUR 9,000.00 and to release the corresponding amount. In accordance with the application, the Local Court released the full amount of EUR 9,000.00 received in the garnishment protection account to the debtor. The creditor objected to this by way of immediate appeal. The Local Court did not grant the immediate appeal and referred the matter to the Regional Court for a decision, referring again to the grounds of the contested order.

Legal appraisal

The Cologne Regional Court fully concurred with the statements of the Cologne Local Court in the contested order and the order not to intervene.

It is true that, in substance, the debtor's application in and of itself concerned the determination of a deviating garnishment-free amount under § Section 850k (1), (2) sentence 1 no. 1 and para. 3 ZPO. However, for the case at issue, an application under § Section 850k (4) not provided for, since the Corona emergency assistance is not one of the amounts mentioned therein. In particular, the Corona emergency assistance was neither other income within the meaning of Section 850i of the Code of Civil Procedure (ZPO) nor a one-time social benefit under § Section 850k (2) sentence 1 no. 2 ZPO.

In order to avoid undue hardship, the debtor's application was rather to be considered as an application for protection against enforcement pursuant to § 765a ZPO to understand. The Corona Emergency Aid is an after § Section 851 (1) ZPO unattachable claim, since the earmarking of the Corona Emergency Aid would prevent a seizure.

Thus, the Regional Court of Cologne states:

"In the jurisprudence of the Federal Court of Justice, in addition to the maximum personal nature of claims, the cases of earmarking have long been recognized as impediments to seizure, which prevent creditor access pursuant to § Section 851 (1) ZPO The court may exclude the possibility of a claim for compensation to the extent that it would be incompatible with the purpose of the claim, which is part of the legal content (BGH, decision of 05.11.2004 - IXa ZB 17/04 -, juris, marginal no. 10). The purpose need not be derived directly from the law, as is regularly the case, for example, with the provisions on the granting of public assistance.

It can also result from the nature of the legal relationship and, in the case of benefits under public law, also from the relevant administrative regulations replacing or interpreting the norm (BGH, judgment of 29.10.1969 - I ZR 72/67 -, juris, para. 23). According to this requirement, the Corona emergency aid - as correctly recognized by the Local Court - is to be regarded as earmarked without further ado, since it serves to secure the economic existence of the beneficiary and to bridge its current liquidity bottlenecks as a result of the Corona pandemic, as evidenced by the purpose of the benefit communicated in the notice."

In the opinion of the Cologne Regional Court, the unseizability of the claim is also not lost by the fact that by transferring the immediate assistance to the debtor's account in question, there is only a claim for payment against the credit institution. This would be highly inequitable and contrary to the intention of the legislator. In the cases not covered by § Section 850k (4) ZPO cases covered, this was in the present case via the application of § 765a ZPO to reach.

Outlook and consequences

The decision of the Cologne Regional Court represents another significant ruling in connection with the Corona emergency aid measures. Since the rollout of the Corona emergency aid measures, my range of services has also included legal advice and handling in connection with the Corona emergency aid measures, from defending against the administrative reclaiming of the requested emergency aid to criminal defense in cases in which the Corona emergency aid may have been received without justification. In case of queries or according to the case that you are concerned you are welcome to contact me and benefit from my experience as a Corona instant help lawyer benefit.