GERMANY Law and Practice Contributed by: Christian Strasser, Thomas Wambach and Yannick Greimann, HEUKING
1. Identifying Assets in the Jurisdiction 1.1 Options to Identify Another Party’s Asset Position In Germany, enforcement is the responsibility of the creditor. No state authority exists in Germany, such as the debt collection office in Switzerland, which acts on its own initiative and carries out enforcement autonomously. However, in pursuing enforcement, the creditor must use the state enforcement bodies and cannot enforce its rights arbitrarily. Enforcement is carried out via the enforcement courts at the local courts and, for the enforcement of real estate, via the land registry office. Furthermore, the bailiffs are active in enforcing the interests of the creditor for the enforcement of tangible assets. Publicly available information is provided in the reg - isters, but at first sight, this is only basic information. Publicly Available Information In Germany, the creditor can obtain valuable informa - tion about the debtor from a number of public regis - ters, either by himself or with the help of private insti - tutions. Public authorities take care of these registers, and the information provided is regarded as reflecting the facts of the situation. With regard to enforcement, the most important registers are the Commercial Register and Business Register ( Handelsregister and Unternehmensregister ) and the Land Register ( Grund- buch ). While the Commercial Register and the Busi - ness Register can be accessed free of charge and by anyone since 1 August 2022, the Land Register can only be accessed by authorised persons. When trying to identify the other party′s assets, the creditor′s first step would be to check the registers, even though they mainly provide only basic informa - tion and some indication of possible assets. There is no random search function provided. The Company Register provides information about the history of a company, its seat, its managing direc - tors, etc. The Business Register contains the annual reports of registered companies. The information in
these registers provides an overview of the status of a company and formal details. However, such informa - tion is often superficial, and with regard to the annual reports, these often do not reflect the actual situation at the time of enforcement. Excerpts from both regis - ters can be obtained without a special interest directly or via private providers. The Land Register provides information about the ownership of property and encumbrance by a mort - gage, etc. Authorised persons can inspect the Land Register only when demonstrating a justified interest, and once again, a basic indication of available prop - erty is needed as there is no random search available. Information from the Land Register is trustworthy and due to the specific character of the property, which can only be transferred by notarised acts, the reality of ownership and encumbrance is not an issue. Once again, it must be mentioned that responsibil - ity for prior identification of assets or an indication of such assets of the other party lies with the creditor. With such basic knowledge, registers can be helpful. Other Means of Obtaining Information Besides the registers, information is also offered by private providers – so-called private credit agencies; eg, CRIF Bürgel, Schufa or Creditreform. These agen - cies can provide information about the current finan - cial situation of businesses and their credit rating. In order to track down single assets of the debtor, further investigation by the creditor is required, par - ticularly if the debtor deliberately conceals assets to prevent the enforcement of judgments. It is reason - able for the creditor to hire private agencies in these circumstances. Asset Disclosure in Germany The tool of real asset disclosure as a means of discov - ery does not exist in Germany in itself; it does exist as a reflex, eg, in the case of third-party debtor informa - tion to be given as a result of attachment orders. Freezing Orders German law allows for freezing orders in the attach - ment procedure ( Arrestverfahren ). The attachment procedure is an urgent court procedure that provision -
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