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General framework

Domestic law

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

The key domestic laws governing the recognition and enforcement of foreign judgments are Sections 328, 722 and 723 of the German Code of Civil Procedure.

International conventions

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

EU regulations

Germany is a member state of the European Union and, therefore, EU regulations apply directly in Germany. The most relevant EU regulations are:

  • EU Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the recast Brussels Regulation); and
  • EU Regulation 805/2004 creating a European enforcement order for uncontested claims.

International conventions Germany is also bound by the following key international conventions concluded by the European Union:

  • the Lugano Convention 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters between the European Community, Switzerland, Norway, Iceland and Denmark; and
  • the Hague Convention 2005 on choice of court agreements. Thus far, Singapore and Mexico are the only non-EU member states to have joined the convention.

Bilateral treaties Germany has concluded numerous bilateral treaties on mutual recognition and enforcement of foreign judgments. Most are meaningless due to prevailing EU regulations and international conventions. However, the following continue to be the most important:

  • the Treaty between Germany and Tunisia 1966 on legal protection, legal assistance and the recognition and enforcement of judicial decisions in civil and commercial matters and commercial arbitration; and
  • the Treaty between Germany and Israel 1977 on the mutual recognition and enforcement of judicial decisions in civil and commercial matters.

Nevertheless, other bilateral treaties may cover the reciprocal recognition and enforcement of judicial decisions in particular cases. 

Competent courts

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

Recognition

Any court or state authority before which a foreign judgment is invoked is competent to decide incidentally on the recognition of the foreign judgment. The recognition of foreign judgments is not subject to a specific procedure.

Enforcement The procedure for seeking enforcement of foreign judgments (exequatur procedure) rendered by courts of EU member states was abolished under EU Regulation 1215/2012. The debtor may apply for refusal of enforcement. Exclusive competence to hear debtors’ cases on the refusal of enforcement lies with the presiding judge of either the regional court of the debtor’s domicile or the regional court in whose territory the judgment has been or will be enforced.

Where exequatur procedures still apply, a distinction must be made between judgments subject to multilateral or bilateral treaties and other judgments:

  • Judgments rendered by the courts of Lugano Convention states, Israel or Tunisia, or chosen courts of a non-EU member state pursuant to the Hague Convention 2005 – the regional court in whose territory either the debtor has its domicile or the judgment will be enforced is solely competent to hear cases on the enforcement of foreign judgments.
  • Other judgments – the courts of the debtor’s domicile or the courts in whose territory the debtor’s assets are situated are locally competent to hear cases on enforcement of foreign judgments. If the amount in dispute does not exceed €5,000, subject-matter jurisdiction lies with the local court; otherwise, the regional court has subject-matter jurisdiction. 

Distinction between recognition and enforcement

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

There is a legal distinction between recognition and enforcement. Unlike the enforcement of a judgment, recognition relates to all of the foreign judgment’s effects on a case (ie, it is not limited to the effect of its enforceability). The recognition of foreign judgments is not subject to a specific formal procedure, whereas the enforcement of foreign judgments may require a specific exequatur procedure. Nevertheless, a creditor may bring a declaratory action only in order to seek recognition of a foreign judgment. However, there is a close connection between recognition and enforcement of foreign judgments. In general, enforcement of a foreign judgment will not be granted if its recognition must be denied. 

Ease of enforcement

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

Recognition and enforcement of foreign judgments are relatively easy to secure where international regulations or multilateral or bilateral conventions cover reciprocal recognition and enforcement. This applies in particular to judgments rendered by the courts of EU member states. Aside from these scenarios, recognition and enforcement can be difficult and time consuming, given that the courts must commonly assess aspects of foreign law with which they are unfamiliar.

Reform

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

Major reform of the regime governing recognition and enforcement of foreign judgments was implemented through the recast Brussels Regulation (1215/2012). Considering that the previous Brussels Regulation (44/2001) and the Lugano Convention had identical provisions concerning the reciprocal recognition and enforcement of foreign judgments, the Lugano Convention needs to be amended to accord with the recast regulation. Different procedures have applied since January 10 2015, when the recast regulation entered into force. However, as the abolition of the exequatur procedure is a significant step towards a common judicial area and a corresponding loss of national sovereignty, it is uncertain whether the convention will be amended accordingly.

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)?

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. 

Formal requirements

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. 

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?

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.

Limitation period

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.

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?

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. 

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?

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

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.

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 losing party may argue that one of the substantive requirements for recognition and enforcement has not been fulfilled. The manner in which this is done depends on the state of origin of the judgment that is sought to be recognised and enforced:

  • With respect to judgments issued in EU member states, the losing party may apply for refusal of either recognition or enforcement.
  • With respect to judgments issued in Lugano Convention or other states, the losing party must argue incidentally that the substantive requirements for recognition were not fulfilled before the court or authority where such judgments are invoked.
  • With respect to judgments issued in Lugano Convention states and declared enforceable in Germany, the losing party may bring this argument in an appeal against that decision.
  • A plaintiff that has obtained a judgment in any other state must apply for a declaration of enforceability in Germany. The losing party may apply for rejection of such declaration due to failure to meet substantive requirements for recognition.

Injunctive relief

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

Basically, no injunctive relief is available to defendants against the recognition or enforcement of foreign judgments in Germany. German courts are of the opinion that injunctions must not interfere with other pending proceedings. Moreover, the debtor or defendant may apply for refusal of enforcement (with respect to EU-based judgments) or appeal any declaration of enforceability (with respect to other judgments). Finally, under certain circumstances the debtor may apply for a stay of execution. Therefore, there is limited need for injunctive relief.

However, in extraordinary circumstances (eg, actions involving highly exaggerated punitive damages (from a German perspective)) the German Federal Constitutional Court has granted an injunction against service or a statement of claim (not judgment) that could violate German public policy.

Recognition and enforcement procedure

Formal procedure

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

Recognition

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.

Timeframe

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.

Fees

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. 

Security

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).

Appeal

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.

Other costs

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.