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Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
Basically, all judgments are enforceable in Germany. However, judgments dismissing actions and interlocutory judgments are not enforceable, as they have no enforceable content. Preliminary injunctions and other decisions in fast-track proceedings are neither recognised nor enforceable in Germany if they were issued without first hearing the defendant.
Judgments granting punitive damages or default judgments are not explicitly excluded from recognition and enforcement in Germany. However, foreign judgments must fulfil certain substantive requirements for recognition and enforcement. Based on this, judgments granting punitive damages are not enforceable in Germany, as they are not in line with German public policy. Default judgments may not be enforceable if the original statement of claim was not duly and timely served on the defendant and it could therefore not defend itself against the action.
How are foreign judgments subject to appeal treated?
Judgments rendered by courts of EU member states or Lugano Convention states can be recognised and enforced in Germany if they have any legal effect or are enforceable in their state of origin.
Other foreign judgments that are still subject to appeal are not enforceable in Germany. Whether such judgments can be recognised in Germany remains unclear; various court decisions and voices in German legal literature are divided on the issue.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
In general, judgments or other documents in languages other than German which are submitted to the German courts must be accompanied by a certified German translation. This requirement is less strict for judgments issued in EU member states. The enforcement authority may request a translation if it cannot proceed without it. However, in order to expedite proceedings and avoid lengthy discussions, it is always recommended to provide certified translations of non-German documents.
EU member state judgments In order to obtain recognition of judgments from EU member states, the claimant must provide the court or authority where such judgment is invoked with:
- a copy of the judgment which satisfies the conditions necessary to establish its authenticity (a certified copy is sufficient); and
- a certificate issued by the state of origin which contains certain formal details of the judgment.
In order to enforce judgments from EU member states, the claimant must provide the competent enforcement authority with the abovementioned documents. Moreover, the certificate issued by the state of origin must certify that the judgment is enforceable and provide, where appropriate, information on recoverable costs of the proceedings and the calculation of interest. If the judgment grants a provisional or protective measure and this was ordered without the defendant being summoned to appear, the claimant must also submit proof of service of the judgment.
Lugano Convention state judgments In order to obtain recognition of judgments from Lugano Convention states, the claimant must provide the court or authority where such judgment is invoked with a copy of the judgment which satisfies the conditions necessary to establish its authenticity (a certified copy is sufficient).
With respect to the enforcement of judgments rendered by courts of Lugano Convention states, the claimant must apply for a declaration of enforceability. To this end, it must produce the same document as for recognition, as well as a certificate issued by the state of origin which contains the formal details of the judgment. These documents must be filed as part of an application to the competent regional court. Further, the claimant must pay a €240 advance on the court’s fees.
Other judgments In order to obtain recognition of judgments from other states, the claimant must provide the court or authority where such judgment is invoked with a copy of the judgment and any other document evidencing the substantive requirements for recognition described below.
In order to enforce judgments rendered in other states, the claimant must apply for a formal declaration of enforceability before the competent court (local or regional court). The claimant must submit a copy of the judgment and any other document evidencing the substantive requirements for recognition described below. Further, the claimant must pay a €240 advance on the court’s fees.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
EU member state judgments
There are no positive substantive requirements to be fulfilled with respect to the recognition and enforcement of judgments from EU member states. However, further to an application from the other party (usually the defendant), recognition or enforcement will be refused if:
- the recognition is manifestly contrary to public policy in Germany;
- the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable it to arrange for its defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible to do so;
- the judgment is irreconcilable with a judgment given between the same parties in Germany;
- the judgment is irreconcilable with an earlier judgment given in another EU member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for recognition in Germany; or
- the judgment conflicts with exclusive jurisdiction provisions for consumers, employees or insured persons if they are defendants, or with other exclusive jurisdiction provisions provided for in Article 24 of EU Regulation 1215/2012 (respectively, Article 22 of the Lugano Convention).
Lugano Convention state judgments The abovementioned negative requirements for recognition or enforcement apply with respect to judgments granted by courts in Lugano Convention states.
As there are no formal recognition proceedings, these requirements will be examined incidentally by the court or authority where such judgments are invoked.
These requirements will not be examined as part of an application for a declaration of enforceability. Rather, the other party must appeal the declaration of enforceability. In appeal proceedings, enforceability will be revoked if one of the abovementioned requirements is fulfilled.
Other judgments Judgments issued by courts in other countries must fulfil five requirements for recognition according to Section 328 of the German Code of Civil Procedure. Three are similar to those for judgments from EU and Lugano Convention member states:
- conformity with public policy;
- due service of the original statement of claim and no reaction of the defendant; and
- no conflicting German judgments and no conflicting prior foreign judgments.
However, two additional substantive recognition requirements apply:
- Competence of foreign courts – recognition is refused if the courts of the country where the judgment was issued are not competent according to German law. There are no specific rules in German law regarding the international competence of foreign courts outside the EU and Lugano Convention member states. Therefore, the general principles of German procedural law apply. Non-German courts have jurisdiction over a German-based defendant, especially if:
- the German party has any assets in the foreign country;
- a company has a branch in the foreign state; or
- the parties agree on a foreign forum. The agreement on a special forum is expressly permitted by German procedural law, if one of the parties has its seat abroad.
- Grant of reciprocity – this requirement means that the recognition and enforcement of German judgments in the foreign country of origin must not be substantially more difficult than the recognition in Germany of a judgment from that foreign state. Whether this requirement is fulfilled must be determined on a country-by-country basis (and with respect to the United States, on a state-by-state basis).
Moreover, the foreign judgment must not be subject to any appeal in its state of origin.
No review of foreign judgments on the merits German courts are generally not permitted to review foreign judgments on the merits (regardless of the jurisdiction in which they were issued). However, the public policy requirement allows a very limited review of foreign judgments on the merits.
What is the limitation period for enforcement of a foreign judgment?
There is no limitation period for enforcement of a foreign judgment in Germany. However, the claim that is confirmed by the foreign judgment may be time barred. The limitation period depends on the applicable law. After its expiration, the defendant may file an action raising an objection to the claim’s enforcement.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Recognition and enforcement can be refused if either the formal or substantive requirements as described above are not fulfilled.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
If a default judgment is to be declared enforceable or be enforced in Germany, German courts will thoroughly review the due and timely service of process in the original foreign proceedings. Such service is one of the requirements of recognition and enforcement of foreign judgments in Germany.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
The recognition of a foreign judgment in Germany is prohibited (or, with respect to judgments from EU member states, refused on application) if the judgment does not comply with public policy. This is the case if recognition of the judgment were to lead to a result that would be obviously incompatible with essential principles of German law – in particular, with fundamental rights. There are certain well-established types of case where the public policy requirement applies. For example, judgments ordering the defendant to pay extraordinarily high punitive damages will normally not be recognised in Germany. Judgments obtained by fraud or which grant obviously usurious claims also will not be recognised.
The public policy requirement also applies to the procedural law on which the foreign judgment is based. Therefore, judgments not issued by independent judges will not be recognised in Germany. However, judgments based on US pre-trial discovery are – at least in principle – recognised and enforceable in Germany.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
The enforcing court’s power to review the jurisdiction of the foreign court depends on the originating country.
Judgments from EU member states and Lugano Convention states are subject to only limited review of their jurisdiction. Enforcement will be refused if the judgment conflicts with exclusive jurisdiction provisions for consumers, employees or insured persons if they are defendants, or with other exclusive jurisdiction provisions under either Article 24 of EU Regulation 1215/2012 or Article 22 of the Lugano Convention.
Judgments from other states will not be declared enforceable if the courts of the country where the judgment was issued are not competent according to German procedural law.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
Concurrent proceedings in Germany or foreign states involving the same matter are irrelevant to the recognition and enforcement of judgments issued in EU member states or Lugano Convention states, provided that they do not end in a non-appealable judgment.
Judgments from other states will neither be recognised nor declared enforceable if there are concurrent proceedings in Germany that came before German courts prior to the foreign proceedings which resulted in the foreign judgment to be recognised and enforced in Germany.
Concurrent pending proceedings before courts of other states are irrelevant to recognition and enforcement in Germany.
Conflicting judgments In case of conflicting judgments, the following principles apply, regardless of where the foreign judgments were issued:
- German judgments always prevail over foreign judgments. German judgments will therefore hinder the recognition and enforcement of foreign judgments, even if the conflicting matter came before German courts after coming before the foreign court, or if the German judgment became non-appealable after the foreign judgment. However, the defendant may apply for retrial of a German judgment even though a foreign judgment on the same matter became non-appealable prior to the German judgment.
- If there are conflicting foreign judgments that can be recognised in Germany, the foreign judgment that became non-appealable first will prevail over the other foreign judgment.
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