Enforcement of Foreign Judgments in Germany

Enforcement of Foreign Judgments in Germany

Recognising and enforcing foreign judgments in Germany is a complex issue, and it depends on the legal area among other issues. Businesses and private individuals may need to have foreign judgments recognised and enforced in a range of legal areas. It is not a straightforward process, and depends on several critical factors. Working closely with our legal professionals is advisable to ensure that the recognition processes are followed correctly.

If you require specialised legal assistance, please do not hesitate to contact our litigation team at Schlun & Elseven Rechtsanwälte.

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Recognising a Foreign Judgment in Germany

It is crucial to examine the relationship between Germany and the foreign jurisdiction as there is no general obligation that countries recognise the judgments made in foreign courts. Many international conventions in specific fields promote multilateral recognition of foreign judgments, but these are restricted to the particular areas in which they apply.

If there is a relationship between the two jurisdictions that recognise legal judgments, your legal professional will apply to enforce the foreign judgment with a regional court.

However, if it is not from a jurisdiction with such a relationship, then your lawyer can bring an exequatur procedure to have the judgment recognised. These exequatur procedures will likely be required when dealing with judgments originating outside of the European Union. For example, cases from the USA, China and Turkey have no set agreement with Germany in many areas.

When conducting the exequatur procedure, the German judges will determine whether the case was done under general legal principles of fairness and without fraud. A judgment provided in a foreign court would not be deemed enforceable if it was given against the fundamental principles of German law.

Our legal experts will examine whether the jurisdiction that has provided the judgment has a bilateral arrangement with Germany regarding the recognition of legal rulings.

The principles behind the recognition and enforcement of foreign judgments are outlined in greater detail through § 328 German Code of Civil Procedure (ZPO). Although this law does not state what is permitted as the nature of the case decides, it guides what is not allowed under German law. This article states the following:

Recognition of a judgment handed down by a foreign court shall be ruled out if:

  • The courts of the state to which the foreign court belongs do not have jurisdiction according to German law;
  • The defendant, who has not entered an appearance in the proceedings and who takes recourse to this fact, has not duly been served the document by which the proceedings were initiated or not in such time to allow him to defend himself;
  • The judgment is incompatible with a judgment delivered in Germany, or with an earlier decision handed down abroad that is to be recognised, or if the proceedings on which such decision is based are incompatible with proceedings that have become pending earlier in Germany;
  • The recognition of the judgment will lead to a result that is obviously incompatible with essential principles of German law, in particular, if the recognition is not compatible with fundamental rights;
  • Reciprocity has not been granted.

As can be seen, the legal status of foreign judgments’ enforceability depends on several factors. Countries without a stable democratic process and a non-independent judiciary will have difficulty reaching the requirements of German law’s recognition of fundamental rights.

Recognition of Foreign Judgments in Germany: EU and Non-EU Countries

Due to the European Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the CFI Regulation), the process by which EU member states recognise each other’s judgments is a much less arduous process than it is for those from non-EU jurisdictions.

§ 36 of this regulation states, “a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”

In cases involving judgments made in the courts of EU Member States, it is vital to have a copy of the decision on hand, and it may also be required to have the judgment translated. A professional translator should perform this translation.

§ 328 German Code of Civil Procedure (ZPO) determines the criteria for recognising the judgments from foreign jurisdictions.

§ 328 ZPO states that one of its requirements is the reciprocity of recognition. This reciprocity points to the fact that if the other jurisdiction does not recognise German judgments, it is unlikely that those judgments will be recognised in German courts.

This is not a straightforward question and can be difficult to prove. As this process of establishing reciprocity can be challenging, you should have a legal professional in your corner when pursuing this information.

In particular, it is necessary to avail of the services of a well-versed lawyer with experience in foreign jurisdictions.

If the German court has recognised the court judgment, then in most cases, the German court does not seek to change the decision given. Recognition of the case will not allow that judgment to be challenged in German courts.

The exception to this view on the enforcement of the ruling is where the judgment itself goes against the fundamental principles of German law. In this case, the decision will not be recognised.

However, even if the German court would have ruled differently in the case, the judgment by the foreign court will be respected in Germany.

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