In order to enforce a foreign court decision in Germany generally an exequatur procedure needs to be conducted first. The exequatur is a legal procedure by which the competent German court checks, whether the foreign court decision meets the general legal requirements, so it can be enforced in Germany.
German domestic law
In German law, the exequatur procedure is laid down in section 722 and 723 of the German Code of Civil Procedure (Zivilprozessordnung).
According to section 723 para 1 of the German Code of Civil Procedure the exequatur procedure will be done by the German court without examining the legality of the foreign judgment.
Only in certain cases the recognition of the foreign judgment shall be ruled out by the responsible court.
This is for example the case, if it is obvious for the German court that
- the court of first instance (i. E. the foreign court) was not competent for the decision by German standards.
- the decision suffers from serious procedural errors.
- the decision suffers from other serious substantive defects (breach of ordre public).
Locally responsible for the decision about the enforceability of the foreign court judgement is generally the German court at the location of the debtor. In other words, if the debtor (a company or a person) is located in Cologne, either the local court of Cologne (Amtsgericht Köln) or the regional court of Cologne (Landgericht Köln) will be responsible for the decision.
If the local court or the district court will be responsible, depends on the value of claim subject to the foreign court decision.
However the general exequatur procedure according to section 722 and 723 of the German Code of Civil Procedure will not take place, if an international agreement between Germany and the foreign state about the exequatur procedure and the enforcement of court decisions exists and is applicable.
This applies especially to supranational EU law, which of course takes precedence over German law. The aim of the supranational EU law is to provide much faster and simpler procedures for the enforcement of court decisions, if two EU countries are involved.
Whether and which agreement is applicable to the enforceability of a specific title, depends generally on the type of the decision concerned, the country of its origin and the time of its adoption.
Below you can find a general overview of the most important international agreements in respect of the recognition and enforcement of foreign decisions in Germany:
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)
One of the most important supranational EU law regarding this matter is 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, also called Brussels I.
This regulation replaced the earlier Brussels Convention concerning Judicial competence and the Execution of Decisions in Civil and Commercial Matters of 1968.
Locally Brussels I is applicable in all Member States of the European Union including Denmark. It is not applicable in the EFTA States, namely Iceland, Norway, Switzerland and Lichtenstein.
As the title already implies, the Brussels I Regulation only lays down rules governing the jurisdiction of courts in civil and commercial matters. The following areas are specifically not covered by the Regulation:
- the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;
- bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;
- social security;
Due to the Brussels I Regulation, the process of the recognition and the enforcement of foreign judgments in civil and commercial matters within the European Union has been considerably simplified and accelerated.
According to Article 41 of the Brussels I Regulation the court of the Member State where recognition is sought has to declare the decision enforceable if the formalities provided for in Article 53 of the Brussels I Regulation are met.
The formalities provided for in Article 53 of the Brussels I Regulation are met, if the applicant can provide to the court:
- A copy of the judgment which satisfies the conditions necessary to establish its authenticity.
- A certificate using the standard form in Annex V to the Brussels I regulation.
The certificate must be issued by the court of the origin state.
In Germany further details of the recognition and enforcement under the Brussels I Regulation are laid down in the German Law on the Implementation of Inter-State Agreements and the Execution of Regulations of the European Community in the Area of the Recognition and Enforcement in Civil and Commercial Matters, also called AVAG.
Lugano Convention of 30 October 2007 on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano Convention)
As mentioned above, the Brussels I Regulation is not applicable in Denmark and the so-called EFTA States . In these states (except for Lichtenstein, which has neither signed the 1988 Convention nor it successor, the 2007 Lugano Convention), the so called Lugano Convention is applicable.
The Lugano Convention matches the Brussels I Regulation almost verbatim. Signatories were the European Community, Switzerland, Denmark, Norway and Iceland.
The new Lugano Convention is the successor to the Lugano Convention of 16.09.1988. Like the Brussel I Convention, the Lugano Convention is only applicable in civil and commercial matters.
It will therefore not apply to tax, customs and administrative matters or to the status and legal capacity of natural persons, rights in property arising from matrimonial relationships, wills and succession, bankruptcy or composition, social security or arbitration.
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIa)
The Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000, also called Brussels IIa, entered into application on 1 March 2005.
This regulation replaced the Council Regulation (EC) No 1347/2000 of 29 November 2000 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (also called Brussels II).
The Brussels IIa Regulation again applies to all EU Member States except Denmark and it applies to legal proceedings instituted after 1 March 2005.
The Brussels IIa Regulation unifies the legal framework in the field of family law. The provisions on divorce and matters of parental responsibility are brought together in one legal text.
In accordance with Article 21 para 1 of the Brussels IIa Regulation such decisions shall be automatically recognized in the other Member States without any special procedure being required.
In conclusion, if a couple gets divorced in one of the member states of the European Union, the decision will be recognized automatically in Germany.
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 (Maintenance Regulation).
The Brussels IIa Regulation described above does not address the cross-border recognition and enforcement of alimony claims. Until recently, the enforcement of maintenance decisions within the EU was also covered by the Brussels I Regulation.
Since the 18 December 2008 the enforcement of maintenance decisions is covered by the 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 called Maintenance Regulation.
The EC Maintenance Regulation came into force in order to make it easier for persons entitled to maintenance to enforce maintenance claims anywhere in Europe
The Maintenance Regulation applies to maintenance obligations arising from:
- a family relationship;
- marriage or affinity.
Council 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 (Enforcement Order Regulation)
On the 21 ]anuary 2005 the Council 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, also called Enforcement Order Regulation, came into force.
Like the Brussels I Regulation, the scope of the Enforcement Order Regulation is limited to civil and commercial. It therefore excludes revenue, customs and administrative matters.
As the title already implies, the Enforcement Order Regulation only applies to claims for payments of specific sums which are uncontested.
Uncontested claims in this regard are claims to which the debtor has expressly agreed by admission or settlement, claims to which the debtor has never objected to the claim in compliance with the relevant procedural requirements or claims where the debtor has not appeared in court after initially having objected to the claim in the course of proceedings.
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