In order for foreign titles to be enforceable in Germany, they must first be declared enforceable in Germany by a domestic act of state (exequatur procedure).
In German law, this procedure is standardised in Sections 722 and 723 of the German Code of Civil Procedure (ZPO).
Accordingly, foreign judgements can only be enforced in Germany if they have been declared admissible in a judgement. The necessary judgement of the competent court is issued in accordance with Section 723 (1) ZPO without examining the legality of the foreign decision.
Pursuant to §§ 722 II, 802 ZPO, the competent court for the declaration of enforceability is the debtor's general place of jurisdiction and, depending on the value in dispute, the local court or the regional court.
However, the declaration of enforceability must always be omitted if the requirements of Section 328 ZPO are met.
This is the case, for example, if the court of first instance (i.e. the foreign court) did not have jurisdiction for the decision according to German expectations, if the decision suffers from serious procedural errors, if there are contradictions with another earlier decision made or recognised/recognised in Germany or if the decision suffers from other serious substantive defects (violation of public policy).
The debtor can defend himself against the enforcement judgement of the competent court with a counterclaim for enforcement.
However, Sections 722 and 723 of the German Code of Civil Procedure (ZPO) always take a back seat if international treaties or agreements provide faster and simpler procedures for the declaration of enforceability.
This applies in particular to supranational EU law, which naturally takes precedence over German law.
Whether and which convention is applicable for the declaration of enforceability of the respective title depends on the type of title, its country of origin and the date on which it was issued.
Some important international agreements regarding the recognition and declaration of enforceability of foreign titles in Germany are presented below:
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation)
The overriding EU law is in particular Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, also known as the Brussels I Regulation.
The Brussels I Regulation applies in all member states of the European Union, including Denmark. The Brussels I Regulation does not apply in the EFTA states.
As the title of the Brussels I Regulation already indicates, it only concerns titles in civil and commercial matters.
The following areas are expressly not covered by the regulation:
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- Civil status and legal capacity of natural persons;
- Matrimonial property law, wills as well as voluntary or statutory succession;
- Bankruptcy, liquidation, composition and similar proceedings;
- Social security;
- Arbitration
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The Brussels I Regulation has considerably simplified and accelerated the procedure for declaring enforceability in the member states of the European Union.
According to Art. 41 Brussels I Regulation, a foreign title must be declared enforceable if the formalities provided for in Art. 53 Brussels I Regulation have been fulfilled.
The following formalities are considered necessary by Art. 53 Brussels I Regulation:
Pursuant to Article 53(1) Brussels I Regulation, the party claiming recognition of a judgment or applying for a declaration of enforceability must produce a copy of the judgment which fulfils the conditions necessary to establish its authenticity.
Pursuant to Article 53(2) of the Brussels I Regulation, the party must also submit the certificate pursuant to Article 54 of the Brussels I Regulation.
The certificate pursuant to Art. 54 Brussels I Regulation must be issued by the court of the state of origin.
In addition to information on the judgement to be enforced (state of origin, name of the court, parties to the proceedings for the judgement, file number), this certificate must contain further information which had to be proven by the submission of documents prior to the adoption of the Brussels I Regulation.
Further details of recognition and enforcement under the Brussels I Regulation are governed by the "Act on the Implementation of Intergovernmental Treaties and on the Implementation of Regulations of the European Community in the Field of Recognition and Enforcement in Civil and Commercial Matters" ("AVAG").
Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters (Lugano Convention)
As already mentioned, the Brussels I Regulation does not apply in the so-called EFTA states (i.e. Iceland, Norway, Switzerland, but not Liechtenstein).
In these countries, the Lugano Convention (LugÜ), which is almost identical in content to the Brussels I Regulation, applies.
The revised Lugano Convention was concluded in Lugano on 30 October 2007. The signatories were Switzerland, the European Community, Denmark, Norway and Iceland.
The revised Lugano Convention is the successor to the Lugano Convention of 16 September 1988.
An enforceable judgement from Switzerland or Liechtenstein or a title equivalent to a judgement constitutes an enforceable decision under the Lugano Convention and can be declared enforceable in Germany on application by a beneficiary, as is the case with the Brussels I Regulation.
As with the Brussels I Regulation, however, this Convention only concerns titles in civil and commercial matters.
According to Art. 1 Lugano Convention, tax and customs matters as well as administrative matters are not covered.
The Lugano Convention is still not applicable to:
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- Civil status and legal capacity as well as the legal representation of natural persons;
- Matrimonial property law, wills as well as voluntary or statutory succession;
- Bankruptcy, compositions and similar proceedings;
- social security;
- and arbitration
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Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (EuMar Regulation)
Since 1 March 2005, jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility have been governed by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (also known as the Brussels IIa Regulation).
This Regulation replaced Regulation (EC) No. 1347/2000 of 29 November 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (also known as Brussels II).
The EuMED also applies to all EU member states with the exception of Denmark.
According to Art. 1 (1) of the Regulation, the Regulation applies to divorce, legal separation and marriage annulment as well as to the attribution, exercise, transfer and total or partial withdrawal of parental responsibility.
Such decisions are automatically recognised in the other Member States in accordance with Art. 21 para. 1 of the Regulation without the need for a special procedure.
However, if one party has an interest, this party can apply for a decision on the recognition or non-recognition of the decision in the other Member State in accordance with Art. 21 (3) of the Regulation.
Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (EU Maintenance Regulation).
However, the Regulation does not apply to the cross-border recognition and enforcement of maintenance claims. Until recently, the enforcement of maintenance titles within the EU was governed by the Brussels I Regulation.
Since 18 June 2011, Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, also known as the EU Maintenance Regulation or EC Maintenance Regulation, has been applicable to the enforcement of maintenance titles.
The EU Maintenance Regulation has created an EU-wide system to facilitate the cross-border enforcement of maintenance claims and, in particular, to speed up proceedings.
In order to be able to initiate enforcement proceedings in Germany on the basis of the foreign title, the applying party requires the following documents:
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- Copy of the title with certificate of service and, if applicable, with note of legal force
- An extract from the title using the form in Annex II to Regulation (EC) No 4/2009
- the declaration of enforceability of the title by the foreign court, including the certificate of service.
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Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (European Enforcement Order)
In some cases, however, the declaration of enforceability of a foreign title in Germany may not be necessary for the enforcement of the same.
This is the case, for example, if a European Enforcement Order exists. The subject of a European Enforcement Order are uncontested claims (i.e. claims against which the debtor has not defended himself or has recognised them by settlement, acknowledgement or judgement by default).
Such titles are - upon application - certified by the court of origin as a "European Enforcement Order" if the requirements of Art. 6 of the European Enforcement Order Regulation are met.
Enforcement of these titles is then governed by Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims.
Pursuant to Art. 20 EuVTVO, enforcement is then governed by the provisions of the state in which the judgement is to be enforced.
A translation and an apostille may also be required on the confirmation as an enforcement order.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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