Enforcement law: The enforcement of foreign court judgements in Germany.

In the context of the enforcement of foreign judgements in Germany, a distinction must be made between the enforcement of judgements from countries that fall within the scope of a multilateral or bilateral convention or a European regulation and the enforcement of judgements from countries that fall outside this scope.

1. enforcement of a title from a state that does not fall within the scope of a multilateral or bilateral convention or a European regulation (third states).

Domestic enforcement of such foreign judgements can only take place in accordance with Section 722 (1) ZPO if the admissibility of enforcement has first been declared by an enforcement judgement:

§ SECTION 722 (1) ZPO: Enforcement may only take place from the judgement of a foreign court if its admissibility has been declared by an enforcement judgement.

The enforcement judgement pursuant to Section 722 of the German Code of Civil Procedure (ZPO) is a legally binding judgement which makes the foreign judgement enforceable in Germany.

Pursuant to Section 722 (2) ZPO, the district court or regional court at which the debtor has his general place of jurisdiction has jurisdiction for the action for a judgement and otherwise the district court or regional court at which an action can be brought against the debtor pursuant to Section 23 ZPO.

Pursuant to Section 723 (1) ZPO, the foreign judgement is neither reviewed for procedural nor substantive correctness.

The proceedings only examine whether the judgement is legally binding under the relevant procedural law and whether the requirements for recognition of the judgement under Section 328 ZPO are met.

According to § 328 ZPO, the recognition of foreign judgements is excluded, among other things, if

a) the foreign court does not have jurisdiction under German international civil procedure law;

b) the action was not duly served on the defendant;

Once the enforcement judgement has been issued, it is then declared provisionally enforceable and an enforcement clause is required (Sections 724 et seq. ZPO).

In addition to the enforcement action, according to the case law of the BGH, an independent action for performance on the claim established by the foreign judgement is also possible.

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2. enforcement of a title from a state that falls within the scope of a multilateral or bilateral convention or a European regulation.

On 22 December 2000, the Council of the EU adopted EC Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation).

This regulation ensures the free movement of titles within the EU by recognising a title from one member state in any other member state and declaring it enforceable in a simplified, initially unilateral application procedure.

For EFTA countries (Switzerland, Liechtenstein, Norway or Iceland), this simplified clause-granting procedure is ensured by the Lugano Convention ("LugÜ").

EC Regulation No. 44/2001 is implemented in Germany in the "Act on the Implementation of Intergovernmental Treaties and on the Implementation of European Community Regulations in the Field of Recognition and Enforcement in Civil and Commercial Matters" ("AVAG").

The AVAG thus takes precedence over Sections 722 et seq. ZPO thus takes precedence as lex specialis, so that the proceedings pursuant to §§ 722 ZPO cannot be conducted for a foreign title that falls within the scope of application of the AVAG.

Pursuant to Section 4 I AVAG, the authorisation of the foreign title for enforcement is rather effected by the fact that the foreign title is provided with an enforcement clause upon application.

Pursuant to Section 3 (1) AVAG, the regional court with jurisdiction under the ZPO has exclusive jurisdiction to issue the enforcement order.

The application can be submitted in writing in accordance with Section 4 (2) AVAG or made orally for the record of the court registry at the competent regional court.

The application must be accompanied by the original copy of the title of the foreign state which is to be provided with the enforcement clause. Two copies of the title and, if necessary, a translation must also be enclosed.

In addition, the application must be accompanied by a certificate pursuant to Art. 54 Brussels I Regulation, Annex V of the court or other authorised body of the foreign state.

Once the enforcement order has been issued, enforcement is carried out in accordance with German enforcement law (Book 8 of the Code of Civil Procedure).

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.

If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.