Germany’s recognition and enforcement of foreign money judgments.
Always an issue of special interest for clients is the question, whether a foreign judgment is enforce-able in Germany and what the conditions for such proceedings would be.
Before focusing on the national rules regarding the recognition and enforcement of foreign judgments, it is wise to consider first, whether requirements relaxing International Treaties or European Union Directives or Regulations (in general or for specific fields of law) would be applicable.
1. EU-Regulations and Treaties
Besides the possibility to achieve an European Enforcement Order according to EU-Regulation 805/2004, a recognition and enforcement through EU-Regulation 44/2001 (“EuGVO”) covering more than 27 states or through the Lugano Convention, Germany has bilateral treaties especially with Belgium, Great Britain, Greece, Israel, Nether-lands, Norway, Austria, Switzerland, Spain and Tunesia.
2. Recognition and Enforcement of Non-EU Judgments in Germany
Judgments awarded by non-EU states which are in turn not subject to those mentioned under “1.” may be recognized and enforced under German procedural laws pursuant to sec. 328, 722 et seq. of the German Code of Civil Procedure (“ZPO”). Although the provisions of the ZPO are widely aligned with the EUGVO there remain, however, several differences.
In particular, for foreign judgments to be recognized under German national laws they have to meet the following legal requirements pursuant to sec. 328 ZPO:
- Recognizable are only final and legally binding judgments of a foreign court. E.g. decisions which are subject to later amendments (e.g. by continuation of the proceedings), settlements and notarial deeds are not sufficient;
- An existing jurisdiction /cognisance of the foreign court;
- Other proceedings must not be incompatible with the foreign decision.
- International competence of the deciding foreign court — For the protection of the defendant it is controlled under hypothetical conditions whether the deciding court — from a German perspective — would have had competence to decide thereby applying German procedural law;
- Defendant’s right to a fair hearing has been accordingly respected;
- Contrary to the proceedings following the above mentioned rules of EuGVO or the Lugano Convention reciprocity has to be assured — a foreign decision is accordingly only recognizable if a German decision meeting comparable legal requirements would be recognized in the state from which the decision originates;
- The decision must not violate the German public order — thus, a decision contradicting material German legal principles would not be recognized in Germany.
Besides these conditions, the recognition does not require a particular proceeding.
Judgments which are to be recognized pursuant to sec. 328 ZPO may be declared enforceable (sec. 722 ZPO). The declaration of enforceability is initiated by bringing an action aiming at the ‘authorization to enforce’ to the competent German court. The respective action will thereby be decided upon following ordinary German procedural rules (so called ‘Erkenntnisverfahren’) without the court’s additional review regarding the facts and legal conclusions of the foreign ruling. However, legal objections may be raised if originated after the end of the foreign court’s oral proceedings.