GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
German law understands damage as an involuntary loss of property. If such loss occurs, the damaged party can, in principle, demand the natural restoration of the status before the harmful conduct/event. In the- ory, monetary relief for a loss is treated as an excep- tion to this principle of natural restoration. However, if damage occurs to a person/an object, the injured party may alternatively claim the amount of money necessary for the restoration. Furthermore, if the res- toration of the status prior to the occurrence of the harmful conduct/event is not possible or sufficient, the injured party may immediately claim the sum of money necessary for the restoration. The common practice is financial compensation for loss or damage. In addition, an injured party may claim compensation for future losses due to loss of profit. The courts apply strict rules regarding the substantiation of the profits that would have accrued in the absence of the harmful conduct/event. Furthermore, a plaintiff may claim compensation for immaterial losses, such as pain or damage to repu- tation. Such compensation is usually granted only if expressly provided for by law. Punitive damages that add a penalty element are gen- erally not awarded under German substantive law due to the principle of restoring the situation prior to the harmful conduct/event. However, punitive damages are awarded if the parties to the dispute agreed on a contractual penalty. Such punitive damages are well known in competition law. 9.3 Pre-Judgment and Post-Judgment Interest According to the basic principle of ne ultra petita, interest is granted only if the plaintiff has expressly claimed that interest. For monetary claims, the plaintiff generally claims interest from the date of service of the statement of claim at five percentage points above the base rate, or nine percentage points above the base rate for certain disputes with non-consumers. In addition, if the defendant is in default of payment, the plaintiff may claim interest before service of the statement of claim. Such delay usually requires that the claim has become due and the plaintiff has
requested performance before filing the statement of claim. If the court grants interest, it will be calculated until the date of payment of the claim. 9.4 Enforcement Mechanisms of a Domestic Judgment The means of enforcement depends on the judgment to be enforced and the nature of the assets against which enforcement is sought. In the case of pecuniary claims, the garnishment of monetary claims or other proprietary interests, the execution against real prop- erty or tangible personal property are typical means of enforcing judgments. Execution titles for specific performance can be enforced by eviction, substitute performance or the imposition of penalties. 9.5 Enforcement of a Judgment From a Foreign Country Foreign judgments are enforceable under international treaties and conventions and, in the absence of such treaties, under German procedural law. Within the European Union, foreign judgments in com- mercial and civil matters are enforced in accordance with the Recast Brussels Regulation. The enforcement of judgments from another EU member state does not require a separate declaration of enforceability and is subject to the same conditions as German judgments. The same applies to judgments rendered in Switzer- land, Norway or Iceland under the Lugano Convention 2007. If German procedural law applies to the enforcement of a foreign judgment, a formal declaration of enforce- ability (exequatur) is necessary. In exequatur pro- ceedings, the debtor may invoke grounds of defence against enforcement such as satisfaction of the judg- ment or the following grounds for non-recognition or non-enforcement of the foreign judgment: • the foreign court had no international jurisdiction under German law over the subject matter and the parties to the dispute; • there was no service of process; • other proceedings take precedence;
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