Regarding the compulsory enforcement of foreign judgments in Germany one generally has to differentiate between the compulsory enforcement of judgments of courts from member states of the EU plus EFTA states (Iceland, Liechtenstein, Norway and Switzerland) and the compulsory enforcement of judgments of courts from non-members of the EU (“third countries”).
1. Compulsory Enforcements of judgments of courts from third countries
If there are no international agreements between Germany and the third country regarding the compulsory enforcement of judgments, one has to revert to s 722, 723 of the German Civil Procedure Act (Zivilprozessordnung, ZPO).
Section 722 para (1) German Civil Procedure Act states:
Compulsory enforcement may be pursued under the judgment of a foreign court if such compulsory enforcement is ruled admissible by a judgment for enforcement.
Thus, one has to apply to the court of competent jurisdiction in Germany in order to get a judgment for enforcement.
According to s 723 para (1) of the German Civil Procedure Act the court of competent jurisdiction will deliver the judgment for enforcement without reviewing the legality of the foreign decision.
However, according to s. 328 of the German Civil Procedure Act the recognition of a judgment of the 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 judgment handed down abroad that is to be recognised, or if the proceedings on which such judgment is based are incompatible with proceedings that have become pending earlier in Germany;
– the recognition of the judgment would lead to a result that is obviously incompatible with essential principles of German law, and in particular if the recognition is not compatible with fundamental rights;
– the reciprocity has not been granted.
If the judgment for enforcement has been issued by the court, the compulsory enforcement will be pursued based on an execution copy of that judgment.
2. Compulsory Enforcements of judgments of courts from member states of the EU and the EFTA countries (Iceland, Liechtenstein, Norway and Switzerland)
The compulsory enforcement of judgments of courts from member states of the European Union in Germany is governed by the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
According to this regulation a judgment given in a member state of the European Union (EU) is to be recognized in another member state without special proceedings, unless the recognition is contested.
The Council Regulation (EC) No 44/2001 supersedes the national law of the member countries (e. g. s 722, 723 of the German Civil Procedure Act described above).
The Council Regulation (EC) No 44/2001 is implemented into German law by the Law on the implementation of international treaties and regulations and treaties of the European Community in the area of recognition and enforcement in civil and commercial matters (“AVAG”).
In case of an application of one party the court of competent jurisdiction in Germany shall immediately declare the foreign judgment enforceable (Section 4 para (1) AVAG). This application has to be made in the proper form.
The compulsory enforcement of judgments of courts from member states of the EFTA countries is governed by The Lugano Convention and ensures that a judgment given in an EFTA country also is to be recognized in Germany without special proceedings.