General framework

Domestic law

Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?

Recognition in general civil matters Section 328 of the Code of Civil Procedure governs the recognition of judgments handed down by a foreign national court in general civil matters.

Enforcement in general civil mattersSections 722, 723 and 794(1)(6-9) of the Code of Civil Procedure govern the enforcement of judgments handed down in general civil matters.

Special civil mattersSpecial rules apply for certain civil law matters. For example, Section 107 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction governs decisions in matrimonial matters and Section 108 applies to decisions concerning other aspects of family law. Further, Section 343 of the Insolvency Code applies to the recognition of decisions to open insolvency proceedings.

Arbitral awardsThe recognition and enforcement of judgments handed down by a foreign arbitral court are governed by Section 1061 of the Code of Civil Procedure in conjunction with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

However, the domestic code is applicable only to the extent that no EU regulations, international conventions or bilateral treaties to which Germany is bound exist in relation to the specific matter.

International conventions

Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?

The recognition of foreign judgments from EU member states is governed by numerous EU regulations, international conventions and bilateral treaties, which prevail over domestic laws.

With regard to EU member state judgments, the EU Recast Brussels Regulation (1215/2012) generally applies to all civil and commercial matters. This regulation widely replaced the EU Brussels I Regulation (44/2001) for proceedings initiated after 10 January 2015. The following EU regulations concern the recognition and enforcement of judgments covering specific matters:

  • EU Regulation 805/2004 concerning uncontested claims in civil and commercial matters;
  • EU Regulation 2201/2003 concerning matrimonial and parental matters;
  • EU Regulation 4/2009 concerning matters relating to maintenance obligations;
  • EU Regulation 1896/2006 concerning decisions in civil and commercial matters establishing a European order for payment procedure;
  • EU Regulation 861/2007 concerning small claims in civil and commercial matters, as amended by EU Regulation 2015/2421;
  • EU Regulation 848/2015 concerning insolvency proceedings;
  • EU Regulation 650/2012 concerning matters of succession; and
  • EU Regulation 606/2013 concerning protection measures in civil matters.

The main multilateral conventions governing the recognition and enforcement of foreign decisions are:

  • the Lugano Convention 2007, which applies to the recognition and enforcement of Swiss, Norwegian and Icelandic judgments concerning civil and commercial matters;
  • the Hague Convention 2005, which concerns decisions based on choice-of-court agreements;
  • the Hague Convention 1973, which concerns decisions relating to maintenance obligations;
  • the Hague Convention 1958, which concerns decisions relating to maintenance obligations towards children; and
  • the Hague Convention 1954, which concerns the recognition and enforcement of foreign decisions on costs.

In addition, a number of bilateral conventions exist. However, insofar as these exist in relation to EU or European Free Trade Association (EFTA) member states, the EU Recast Brussels Regulation and the Lugano Convention prevail. Therefore, bilateral conventions de facto have only comprehensive validity in relation to Israel, Turkey and Tunisia. Beyond these countries, no bilateral conventions with comprehensive validity exist.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards applies with regard to arbitral awards.

Competent courts

Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?

A special court procedure for obtaining recognition is unnecessary for EU member state judgments. Rather, such judgments are automatically recognised provided that the necessary legal requirements for recognition are met. If the outcome of the proceedings in a German court depends on the determination of an incidental question of recognition, this court has jurisdiction over the question of recognition (cf Article 36(3) of the EU Recast Brussels Regulation).

With regard to enforcement, Article 39 of the EU Recast Brussels Regulation provides that any judgment rendered by an EU member state is directly enforceable. Thus, a special procedure or a declaration of enforceability is not required. However, the person against whom a judgment will have effect or against whom enforcement is sought can apply for refusal of the judgment’s recognition or enforcement. The application for refusal of recognition or enforcement must be submitted to the regional court of the district in which:

  • the judgment debtor has their place of residence; or
  • compulsory enforcement is to take place, where the judgment debtor resides outside Germany.

The seat of a company or legal person is equivalent to their place of residence (cf Article 47(1) of the EU Recast Brussels Regulation in conjunction with Sections 1115(1) and (2) of the Code of Civil Procedure).

Where domestic law applies (ie, in the absence of a mutual treaty or convention or EU law), a special proceeding for recognition is unnecessary.

In contrast, the enforcement of a foreign decision pursuant to Section 722(1) of the Code of Civil Procedure can be sought only on the basis of a declaration of enforceability issued by a German court. The appropriate procedure (ie, exequatur) takes place at the district or regional court in whose district the debtor has their general residence. Special jurisdictions apply for family and maintenance obligation matters.

Distinction between recognition and enforcement

Is there a legal distinction between the recognition and enforcement of a judgment?

There is a clear legal distinction between the recognition and enforcement of a judgment.

A foreign judgment must be recognised before it can be enforced. ‘Recognition’ means that a judgment attains legal validity in Germany and becomes binding for the courts and authorities.

‘Enforcement’ means that the creditor so entitled by the judgment can pursue execution thereof against the debtor on the basis of an enforceable title by executive authorities.

Recognition and execution are distinct in the sense that the recognition of a judgment does not necessarily mean that it is enforceable. As far as domestic law applies, the enforcement of a foreign judgment requires a declaration of enforceability ruling the enforcement admissible (exequatur).

Ease of enforcement

In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?

With regard to judgments from EU and EFTA member states, recognition and enforcement do not pose a problem. Recognition and enforceability are the rule prescribed by law.

With regard to judgments from other states, the necessity of exequatur under German domestic law is more difficult.

Reform

Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?

There are no proposals to reform the framework on recognition and enforcement of judgments.

Conditions for recognition and enforcement

Enforceable judgments

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)?

In general, all types of judicial decision are recognisable and enforceable.

The fact that a judgment rendered in matters of civil law grants punitive damages in principle does not hinder recognition and enforcement in Germany. Nevertheless, recognition and enforcement of such a judgment could be seen as an infringement of public policy and therefore denied. The same applies with regard to enforcement of such a judgment.

Under the EU Recast Brussels Regulation (1215/2012), default judgments are enforceable provided that the court of the other member state confirms – in accordance with Section 53 of the regulation – that the document instituting the proceedings or an equivalent thereof has been served on the debtor. Under domestic law, default judgments are enforceable if:

  • the document by which the proceedings were initiated was served on the defendant; and
  • the defendant had sufficient time to defend itself.

The following decisions are neither recognisable nor enforceable:

  • preliminary decisions;
  • decisions based only on procedural grounds;
  • notarial deeds; and
  • court settlements (if the court had the role of only executing and authenticating the settlement).

Further, enforcement is limited to judgments with an enforceable title. Thus, declaratory judgments, judgments affecting a legal relationship and judgments dismissing a complaint are not enforceable.

How are foreign judgments subject to appeal treated?

Under domestic law, recognition of foreign judgments is possible even if the judgment is subject to appeal. However, enforcement of a foreign judgment is possible only based on a final ruling by a court having international jurisdiction according to German law. Further, the judgment must relate to the field of civil law.

A foreign judgment rendered in an EU member state can be enforced even if it is subject to appeal, provided that it is enforceable under the law of the EU member state that rendered the judgment.

Formal requirements

What are the formal and documentary requirements for recognition and enforcement of foreign judgments?

A formal procedure for recognition or enforcement is unnecessary for EU member state judgments  (cf Article 36 of the EU Recast Brussels Regulation).

The party seeking to invoke a judgment given in another EU member state must provide a copy of the judgment which satisfies the conditions necessary to establish its authenticity under the law of the EU member state rendering the judgment and the certificate pursuant to Article 53 of the EU Recast Brussels Regulation (cf Article 37).

With regard to judgments from non-EU member states, enforcement requires an exequatur procedure. Once enforcement has been declared admissible, the judgment creditor may seek enforcement under the same rules which apply to the enforcement of domestic judgments. 

Substantive requirements

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?

Under Article 36 of the EU Recast Brussels Regulation, judgments rendered in EU member states are automatically recognised in Germany. However, under Article 45 of the regulation, the judgment debtor can raise objections against the recognition on the basis of certain grounds for refusal.

The same applies with regard to enforcement; judgments rendered by EU member states are automatically enforceable in Germany (Article 39 of the EU Recast Brussels Regulation) provided that the judgment debtor does not raise grounds for refusal of enforcement under Article 46 of the regulation in conjunction with Article 45. The judgment creditor is not required to obtain a declaration of enforceability.

Under Article 45 of the EU Recast Brussels Regulation, counterparties can raise the following grounds for refusal:

  • Recognition or enforcement is contrary to public policy in the EU member state addressed.
  • The judgment was given in default of appearance, where the defendant was not served with the document which instituted the proceedings or with an equivalent thereof in sufficient time and in such a way as to enable it to arrange 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 one that was delivered in the member state addressed with regard to the same parties.
  • The judgment is irreconcilable with an earlier judgment given in another member state or a third state which had the same cause of action and concerned the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the member state addressed.

As far as domestic law applies, Section 328(1) of the Code of Civil Procedure provides that foreign judgments are automatically recognised, except where one of the following grounds for refusal applies:

  • The foreign court was incompetent under German law.
  • The document by which the proceedings were initiated was not duly served on the defendant or in such time to allow the defendant to defend itself.
  • The judgment is incompatible with a previous judgment issued or a foreign judgment previously recognised in Germany.
  • The recognition is incompatible with fundamental principles of German law, especially fundamental civil rights.
  • Reciprocity is not granted (ie, the state of origin does not recognise German judgments under the same conditions under which Germany recognises judgments deriving from that state).

Further, under Section 723(2) of the Code of Civil Procedure, foreign judgments must be declared enforceable if they are:

  • legally binding and enforceable in the state of origin; and
  • recognisable under Section 328 of the code (see grounds for refusal above).

Beyond that, the German courts cannot review foreign judgments on their merits. Under Section 723(1) of the Code of Civil Procedure, a so-called ‘revision au fond’ (ie, a review of the substance of an arbitral award) is prohibited.

Limitation period

What is the limitation period for enforcement of a foreign judgment?

In general, the statute of limitations is a question of substantive and not procedural law. Therefore, the limitation period depends on the claim in question and the applicable law. Primarily, the law that governs the claim in question must be evaluated to further asses the limitation period and its suspensions.

Under Section 197(1)(3) of the Civil Code, claims that have been declared final and absolute become statute barred after 30 years. This section generally also applies to foreign judgments. However, the requirements for recognition must be met (see Section 328 of the Code of Civil Procedure if domestic law is applicable or Article 45 of the EU Recast Brussels Regulation if EU law is applicable).

Under Section 204(1)(1) of the Civil Code, the limitation period is suspended by the bringing of an action for:

  • the grant of a court certificate of enforceability; or
  • the issue of an order stating that the judgment is admissible for enforcement. 

Grounds for refusal

On what grounds can recognition and enforcement be refused?

The grounds for refusing recognition or enforcement are conclusively set out in Article 45 of the EU Recast Brussels Regulation as follows:

  • Recognition or enforcement is contrary to public policy in the EU member state addressed.
  • The judgment was given in default of appearance, where the defendant was not served with the document which instituted the proceedings or with an equivalent thereof 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 one that was delivered in the member state addressed with regard to the same parties.
  • The judgment is irreconcilable with an earlier judgment given in another 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 its recognition in the member state addressed.
  • The defendant was a policyholder, insured or beneficiary of an insurance contract, the injured party was the consumer or an employee and the judgment was not issued by the court with exclusive jurisdiction.
  • The judgment conflicts with the exclusive jurisdiction of another EU member state court.

Under Article 46 of the EU Recast Brussels Regulation, the enforcement of a judgment will be refused on the application of the person against whom enforcement is sought if one of the grounds of refusal referred to in Article 45 of the regulation applies.

As far as domestic law is applicable, Section 328(1) of the Code of Civil Procedure provides that foreign judgments will not be recognised if the following grounds for refusal are fulfilled:

  • The foreign court was incompetent under German law.
  • The document by which the proceedings were initiated was not duly served on the defendant or in such time to allow the defendant to defend itself.
  • The judgment is incompatible with a previous judgment issued in Germany or a foreign judgment previously recognised in Germany.
  • The recognition is incompatible with fundamental principles of German law, especially fundamental civil rights.
  • Reciprocity is not granted (ie, the state of origin does not recognise German judgments under the same conditions under which Germany recognises judgments deriving from that state).

Enforcement is refused on the same grounds as the above. Under Section 723(2) of the Code of Civil Procedure, the invoked court cannot deliver the required judgment of enforcement (exequatur) if the judgment’s recognition is ruled out pursuant to Section 328 of the code.   

Service of process

To what extent does the enforcing court review the service of process in the original foreign proceedings?

Pursuant to Article 45(1)(b) of the EU Recast Brussels Regulation, recognition and enforcement may be refused where the judgment was given in default of appearance if the defendant was not served with the document which instituted the proceedings (or with an equivalent thereof) in sufficient time and in such a way as to enable it to arrange its defence. According to Section 1115 of the Code of Civil Procedure, the regional court of the jurisdiction in which the obligor has its general venue has competence to refuse recognition or enforcement.

Within the scope of German law, Sections 328 and 723 of the Code of Civil Procedure apply. The court must review whether the defendant:

  • was duly served with the document by which the proceedings were initiated; and
  • had sufficient time to defend itself.

The foreign state procedural rules apply to the question of whether the defendant was duly served. In contrast, the German standards apply to the question of whether the defendant had sufficient time to defend itself. In general, two to three weeks are sufficient in this regard.

Public policy

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?

Under both Article 45 of the EU Recast Brussels Regulation and Sections 328 and 722 of the Code of Civil Procedure, the courts can examine public policy issues. The consistency with German substantial and procedural public policy will be addressed.

However, German case law defines the public policy standard narrowly in order to avoid prohibited reviews on the merits. Recognition and enforcement are refused only if fundamental principles of German law (especially constitutional law) are violated. If the defendant is a German citizen, German constitutional principles must be applied more stringently.  

Jurisdiction

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?

Within the ambit of the EU Recast Brussels Regulation, the German courts do not usually review the jurisdiction of foreign courts. In special cases (ie, matters relating to insurance, consumer contracts and contracts of employment), recognition can be refused on the application of one party if the foreign court did not have jurisdiction.  

Within the scope of German law, recognition and enforceability of a foreign award will be refused if the foreign court did not have international jurisdiction according to German law. Thus, German procedural law and not the law of the foreign state determines whether a foreign court had international jurisdiction. The German courts will examine whether a foreign court would have had jurisdiction if it had hypothetically applied 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?

Under Article 45 of the EU Recast Brussels Regulation, recognition and enforcement can be refused if a judgment is irreconcilable with an earlier judgment given in another EU member state or a third state which involves the same cause of action and is between the same parties. Such earlier judgment must fulfil the conditions for recognition in the member state addressed.

Under Sections 328 and 723 of the Code of Civil Procedure, recognition and enforcement will be refused if a foreign judgment is:

  • incompatible with a judgment delivered in Germany or an earlier judgment that was handed down abroad; and
  • set to be recognised.

The same applies if the proceedings on which such judgment is based are incompatible with proceedings that became pending earlier in Germany. 

Opposition

Defences

What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?

The German courts cannot review foreign judgments on their merits. Within the ambit of the EU Recast Brussels Regulation (1215/2012), defendants may file a motion for refusal of recognition and enforcement of a foreign judgment. Under Article 47 of the regulation and Section 1115 of the Code of Civil Procedure, the district court of the jurisdiction in which the obligor has its general venue is exclusively competent for such motions.

Under Section 723(2) of the Code of Civil Procedure, a foreign judgment must be declared enforceable. During this process, the defendant may claim that the requirements for recognition set out in Section 328 of the code are not fulfilled.

Under Section 723 of the Code of Civil Procedure, a judgment of enforceability may be appealed.

During the execution process, the ordinary German remedies against execution apply (see, in particular, Sections 765(a)ff of the Code of Civil Procedure).

Injunctive relief

What injunctive relief is available to defendants (eg, anti-suit injunctions)?

Under Article 44 of the EU Recast Brussels Regulation, the German courts may, in the event of an application for refusal of enforcement of a judgment:

  • limit the enforcement proceedings to protective measures;
  • make enforcement conditional on the provision of such security as it determines; or
  • suspend the enforcement proceedings – either wholly or in part.

Under domestic law, foreign judgments are enforceable only after a German court has ruled for the admission of enforcement proceedings. Thus, there is no need for preliminary measure. After the first-instance court has ordered the admission of enforcement proceedings, the court of appeal may limit the enforceability of the first-instance judgment.

German law generally does not provide for an injunctive relief or anti-suit injunction against the recognition or enforcement of a foreign judgment. If German law applies, the defendant may appeal the decision regarding the enforceability of a foreign judgment. During the enforcement proceedings, the defendant is entitled to general remedies against enforcement measures under German law.

Within the scope of Article 38 of the EU Recast Brussels Regulation, a court or authority before which a judgment from another member state is invoked may suspend the proceedings if the judgment is challenged in the member state or the grounds for recognition are in dispute. 

Recognition and enforcement procedure

Formal procedure

What is the formal procedure for seeking recognition and enforcement of a foreign judgment?

Within the ambit of the EU Recast Brussels Regulation (1215/2012), a judgment given in an EU member state will be recognised and enforceable in other member states. Additional proceedings are not required.

German law applies in the absence of any other multi or bilateral contracts with the state in which a judgment was rendered. Whereas recognition takes place automatically as long as the requirements are met and no grounds for refusal are invoked, execution can be sought based only on a court declaration of enforceability (exequatur).

Exequatur will be issued by the local court at which the debtor has its general place of jurisdiction. If there is no general place of jurisdiction, the court in whose district the defendant's property is situated will have jurisdiction.

In general, the exequatur procedure has no significant procedural peculiarities. 

Timeframe

What is the typical timeframe for the proceedings to grant recognition and enforcement?

The typical timeframe for the proceedings to grant enforcement is four to seven months.

Fees

What fees apply to applications for recognition and enforcement of foreign judgments?

A court fee of €240,00 (1510 of the Court Costs Act Costs List) applies to a declaration of enforceability of a foreign judgment. This fee is reduced if:

  • the procedure is terminated by withdrawal of the application before the end of the oral proceedings; or
  • no oral proceedings take place before the end of the day on which the decision is transmitted to the registry (1511 of the Court Costs Act Costs List).

The court fees for the procedure for recognition and enforcement are based on the value in dispute. A court fee with a rate of 2.0 (1620 of the Court Costs Act Costs List) applies.

Security

Must the applicant for recognition and enforcement provide security for costs?

Applicants for enforcement whose habitual residence is not in an EU member state or a signatory state of the Agreement on the European Economic Area must provide security for the costs of the proceedings should the defendant so demand (cf Section 110(1) of the Code of Civil Procedure).

There are certain exceptions to this rule, such as where an international treaty prohibits demanding a security deposit (cf Section 110(2) of the Code of Civil Procedure).

Appeal

Are decisions on recognition and enforcement subject to appeal?

Court decisions on the enforcement of foreign judgments are subject to appeal. Appeals are an available remedy against the final judgment of a first-instance court.

During the execution process, the debtor must assert objections that concern the primary foreign claim or the claim for execution itself as established by the judgment (cf Section 767 of the Code of Civil Procedure). The debtor may file a corresponding action with the first-instance court. Such objections by way of an action may admissibly be asserted only insofar as the grounds on which they are based arose after the close of the hearing that was the last opportunity for such objections to be asserted. Objections arising after this date cannot be asserted.

Other costs

How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?

If a debt stated in a currency other than euros is payable within Germany, payment may be made in euros unless payment in the other currency has been expressly agreed (cf Section 244(1) of the Civil Code).

A claim specified and to be paid in a foreign currency cannot be converted in the declaration of enforceability by a German court. Rather, such conversion is left to the enforcement organ (cf Section 130(4) of the Professional Directive for Judicial Officers). Conversion occurs at the rate of exchange in effect in the place of payment at the time of payment (cf Section 244 (2) of the Civil Code).

Enforcement against third parties

To what extent can the courts enforce a foreign judgment against third parties?

The procedural law of the foreign state in which the judgment was rendered generally determines the legal validity against third parties. Under German procedural law, a judgment also has legal validity against the persons who become successors of the parties after the matters became pending.

Apart from that, a judgment has legal validity only against third parties that have been equally entitled to a hearing. Otherwise, recognition and enforcement against a third party will violate German public law. 

Partial recognition and enforcement

Can the courts grant partial recognition and enforcement of foreign judgments?

Within the ambit of the EU Recast Brussels Regulation, recognition and enforcement of foreign decisions are granted without limits.

Within the scope of German law, partial recognition may be granted if specific legal consequences of the foreign judgment contravene German law.