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Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
The recognition of foreign judgments is not subject to a specific formal procedure. Nevertheless, creditors may bring a declaratory action to pursue the recognition of a foreign judgment.
Enforcement Within the scope of EU Regulation 1215/2012, the exequatur procedure for judgments rendered by courts of EU member states has been abolished. It is up to the debtor to challenge the enforcement of foreign judgments. Aside from this, various formal procedures (exequatur procedures) apply to the enforcement of foreign judgments:
- Judgments rendered by the courts of Lugano Convention states or Israel, as well as judgments of chosen courts of non-EU member states pursuant to the Hague Convention 2005 – judgment creditors must apply for a court order for a declaration of enforcement with the competent regional court. Representation by legal counsel is not compulsory. The debtor will not be heard. The presiding judge of a chamber of the competent regional court will decide without an oral hearing taking place; if the requirements for recognition and enforcement pursuant to the respective conventions are met, the judge will declare the judgment enforceable by issuing a certificate of enforceability. As far as judgments rendered by courts of Lugano Convention states are concerned, grounds for refusal of recognition and enforcement of the foreign judgment will not be considered at this stage of the procedure.
- Judgments rendered by the courts of Tunisia – judgment creditors must apply for a court order for a declaration of enforcement with the competent regional court. The details of the procedure and the prerequisites for the court decision are set out in the respective treaty and its implementing provisions.
- Judgments rendered by courts of other states – judgment creditors seeking to enforce judgments must apply for a court judgment of enforcement. Under this procedure, which constitutes regular proceedings before domestic courts, the court examines whether grounds for refusal of recognition exist. An oral hearing will take place. Representation by counsel is required if the regional court has, as in most cases, subject-matter jurisdiction. On issuance of a judgment of enforcement, the creditor is entitled to apply for enforcement measures on the same terms as a creditor in a domestic judgment.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
As foreign judgments are recognised in Germany incidentally, there is no specific timeframe for recognition proceedings.
As judgments from courts in EU member states are enforceable in Germany without exequatur proceedings, there is also no timeframe for such proceedings.
The timeframe for having other foreign judgments declared enforceable depends largely on the state of origin of the judgment and the documents provided by the applicant or claimant. If a judgment issued in a Lugano Convention state is to be declared enforceable, and if the required documents are complete and available along with certified translations, the declaration of enforceability can be granted within several weeks. Judgments issued in other states may take six to 12 months to be declared enforceable in the first instance. However, the timeframe varies depending on the state of origin, the available documents and the counter-arguments raised by the losing party.
What fees apply to applications for recognition and enforcement of foreign judgments?
The court fee covering all exequatur procedures is €240. If no agreement on remuneration has been made, lawyers’ fees are calculated in accordance with the German Code for the Remuneration of Lawyers. In this respect, the amount of fees will be determined based on the value of the dispute.
Must the applicant for recognition and enforcement provide security for costs?
No, unless a creditor – after having obtained its judgment outside the European Union or a Lugano Convention state – applies for enforcement and the debtor demands security for costs. However, the creditor is not required to provide security for costs if:
- it has its habitual place of abode in an EU or European Economic Area member state; or
- it is exempt from the obligation to provide security for costs under international treaties (eg, the Hague Convention on Civil Procedure 1954).
Are decisions on recognition and enforcement subject to appeal?
Yes. Appeal is available to court judgments on enforcement of foreign judgments. A complaint is allowed against the court order on the declaration of enforcement.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
No conversion of foreign currencies is made in an exequatur procedure. The calculation of interest will cause difficulties if the interest rate or interest period is not specified in the foreign judgment. In such case, the court deciding on enforcement of the foreign judgment will specify the interest in accordance with the foreign jurisdiction.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
An exequatur judgment/order will be issued against the debtor in the foreign judgment. The court may declare a foreign judgment enforceable against a legal successor only on the basis of a proven legal succession to the debt. It is possible to grant partial recognition and enforcement if different claims covered by a judgment can be separated. For example, if a US creditor seeks enforcement of several claims for damages, courts may grant a judgment of enforcement only with regard to material or non-material damages and dismiss the creditor’s application with regard to punitive damages.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
It is possible to grant partial recognition and enforcement if different claims covered by a judgment can be separated. For example, if a US creditor seeks enforcement of several claims for damages, courts may grant a judgment of enforcement only with regard to material or non-material damages and dismiss the creditor’s application with regard to punitive damages.
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